The Portuguese government and some of the social partners (the Union Confederation - CGTP and the Industrial Companies Association – CIP, were left out) signed a "Reinforcement of the Medium-Term Agreement to Improve Incomes, Wages and Competitiveness" ("Reinforcement") within the context of the Standing Committee on Social Dialogue of the Economic and Social Council.

The purpose was to update the list from the 2022 Agreement, establishing specific goals and measures in the areas of labour and taxation. In general, the goals are aligned with the government's policy guidelines in this area and will also have an impact on companies. We highlight the following:

(A) Salary increases and other benefits

(i) 5% nominal increase in remuneration per employee by 2024;

(ii) Increase of the minimum monthly wage ("RMMG") to €820 for 2024;

(iii) Gradual reduction in Personal Income Tax ("IRS") and updates to the tax classes;

(iv) 100% increase in the deduction of union contributions from IRS;

(v) Increases in travel allowances to: (i) €0.40 per kilometre for personal vehicle usage; (ii) €62.75 for domestic/national travel; and (iii) €148.91 for international travel;

(vi) Tax incentives for employers providing housing for employees;

(vii) Exemption of amounts allocated to the Labour Compensation Fund ("FCT") for tax and contribution purposes;

(viii) Establishment of a mechanism for a phased and progressive exit from the labour market before the legal retirement age, allowing part-time retirement to be combined with income from work to facilitate the sharing of intergenerational knowledge; and

(ix) Development of a strategy to address challenges arising from the ageing of the workforce.

(B) Employers

(i) Strengthening contractual tax benefits for productive investment to promote the attraction and retention of highly qualified employees by extending the scope of eligible expenses to the wage costs of employees holding qualifications equal to or higher than a master's degree;

(ii) Reviewing and simplifying the Salary Enhancement Tax Incentive by: (i) Extending eligibility; (ii) Including non-negotiated instruments of collective regulation  (extension and working conditions ministerial ordinances) during 2023 and 2024; (iii) Reference to the salary enhancements supported by the employer as long as it is covered by negotiated instruments of collective regulation (collective bargaining agreements) celebrated less than 3 years ago;

(iii) Introducing a measure to support job retention in sectors vulnerable to seasonality, in order to reduce the intermittency of employment relationships and the associated unemployment, by providing certified vocational training during inactive periods;

(iv) Aligning the taxation of independent contractors more closely with employment taxation for service providers economically dependent on the contracting entity.

(C) Administrative simplification and contextual costs

(i) Establishing a One-Stop Shop for Employees and Companies to encompass all matters related to employment, training and social security, through a partnership between the Institute for Employment and Professional Training (IEFP), the Social Security Institute (ISS) and the Authority for Working Conditions (ACT), which will include online services;

(ii) Social Security payment slips will now be valid until the payment deadline;

(iii) Employers no longer need to notify Social Security when an employee becomes a pensioner; and

(iv) The procedures for reporting the posting of employees abroad will be revised.

The Reinforcement does not specify implementation dates for most of the measures outlined, although some are already reflected in the proposed State Budget for 2024.

The Portuguese Government has finally established the area for the Viana do Castelo technological free zone ("ZLT") to produce renewable energies off the in north cost of Portugal. The ruling was published on October 4 in the Official Gazette.

This new ZLT covers an area of 7.63 km² and is located in the National Maritime Spatial Planning (PSOEM) for Viana do Castelo. It corresponds to a total area of 47 km², bordering the Windfloat Atlantic offshore wind farm (with its 25 MW and covering an area of 11.25km²).

Installing research and development projects with more than 30 kW capacity in this ZLT will require a prior register at DGEG, the Portuguese Energy ministerial department.

The injection capacity into the public grid can be used for a period of six years from the availability of the connection infrastructure. This period may be extended by DGEG for half of the initial term.

The energy injected from these projects into the public grid will be freely tradable in the open market or through bilateral contracts.

Projects developed within the ZLT will be exempt from paying grid access tariffs and other charges related to grid contributions, but they may be subject to a fee established by the Portuguese Energy Regulatory Authority (ERSE) to partially cover the grid operators’ investment and operation of the connection infrastructure necessary for the operation of the ZLT.

The Portuguese Electric System Law had established in 2022 three ZLT aimed at promoting research and testing activities for technologies, products, services, business models, and specific regulatory frameworks regarding to electricity production, storage, and self-consumption. One of those areas is precisely located in Viana do Castelo and was assigned to renewable energy projects from oceanic source or location (the other two were dedicated, respectively, to the decommissioning process of the Pego coal-fired thermoelectric plant and the Rego do Mira irrigation perimeter).

The Decent Work Agenda has recently been regulated concerning the compensation limits due to remote employees, through Ministerial Ordinance 292-A/2023, of 29 September.

The Ordinance sets the maximum compensation amounts due to employees for additional expenses related to teleworking, which are not considered taxable income or a basis for social security contributions, as specified in Article 168 of the Labor Code, enshrining the following:

(i) The maximum amount of compensation excluded from taxable income and social security contributions corresponds to the following amounts per day for each expenditure category: (i) household electricity consumption - €0.10; (ii) personal Internet usage - €0.40 and (iii) personal computer or equivalent IT equipment - €0.50. Overall, considering the maximum daily amount of €1.00 and the provision of work for 22 business days, the monthly tax-exempt compensation amounts to €22.00.

(ii) The daily limits referred to in (i) are increased by 50% when the amount of compensation results from a Collective Bargaining Agreement entered into by the employer. Therefore, considering the provision of work for 22 business days, the monthly amount of compensation exempt from taxation can reach up to € 33.00.

(iii) The limit specified in (i) applies only to full days of teleworking effectively provided and resulting from a written agreement. A "full working day" is one in which the "work is carried out remotely, using information and communication technologies, in a location not determined by the employer, for periods of no less than one-sixth of the weekly working hours".

(iv) The amounts mentioned in (i) and (ii) are only applicable to compensation for the professional use of goods or services that are not directly or indirectly made available to the employee by the employer. The Ordinance deems “making available” as "offering, lending, placing at disposal, selling at a price below its market value or any other act that allows the use and fruition of electricity, the Internet and a computer or equivalent without the employee financially bearing the respective costs under normal market conditions."

The Ordinance came into force on October 1, 2023.

The advisory committee of the Portuguese Minister of Economy has approved the draft plan for the allocation of areas and volumes in the national maritime space for offshore windfarms (“PAER”) drafted by the Directorate-General for Natural Resources, Safety, and Maritime Services. 

For that purpose, the advisory committee work group appointed one year go by the Portuguese Government engaged in an in-depth consultation process from May to September 2023. During this period, collaborative efforts from diverse stakeholders shaped an acceptable solution to all while maintaining a balanced approach to accommodating various activities within the national maritime boundaries.

For instance, concerns were raised, particularly by the fishing industry and environmental advocacy groups, about potential environmental and biodiversity impacts in the context of offshore wind energy, and consequently, the working group responsible for defining the rules for the inaugural offshore wind auction revisited the designated auction areas.

According to the working group's proposal, there is the potential to generate up to 2 GW of electricity in Viana do Castelo, solidifying its role as a significant contributor to the Government's phased auction strategy aimed at awarding until 2030 up to 10 GW of offshore wind power.

By year-end, exploration opportunities will expand to encompass 3.5 GW in areas off Viana do Castelo, Leixões, and Figueira da Foz.

A recent announcement from the Ministry of Economy marks the beginning of the next phase, which will involve an upcoming public consultation, the details of which will be disclosed soon.

In the coming months, the Portuguese Government intends to initiate the first national auction for these purposes, with the initial tenders expected to be announced later this year and the actual competitions scheduled to take place in early 2024. 

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In Portugal, the gains obtained by employees or members of corporate bodies under stock plans are treated as employment income and subject to Personal Income Tax (“PIT”) at progressive rates.

To foster the use of these plans, Law 21/2023 approved a new tax framework that includes the following benefits:

• 50% PIT exemption on the gains obtained under the stock plans;
• Flat rate of 28%; and
• Deferral of taxation to the moment the stocks are sold, except in the following cases:

-  Change of residency; or

- Donations/succession.

The benefits will apply to employees and members of corporate bodies of the companies that:

• Qualify as a micro, small, or medium-sized enterprise or a small-mid-cap enterprise (<500 employees); or
• Carry out an activity in the innovation sector, which will be deemed to be the case if the company invests in research and development ("R&D"), patents, industrial designs, or computer programs at least 10% of its total costs or turnover.

To be entitled to these benefits, the employees or members of corporate bodies must retain the stocks or equivalent rights for at least one year.

Except in the case of companies that qualify as startups or as micro or small enterprises in the year prior to the approval of the plan, the following persons will not be eligible:

• Employees that hold, directly or indirectly, a stake of not less than 20% of the share capital or voting rights; and
• Members of the corporate bodies.

The new framework will apply to stock plans approved in the year 2023 and also to plans approved until 31 December 2022, provided that, in this case, they are made available by companies that, until 25 May 2024, are recognized as startups, under the law in force, or that demonstrate they were eligible as start-ups on the date of approval of the plan.

The Decent Work Agenda entered into force with Law 13/2023, of 3 April, which amended the Portuguese Labour Code and other connected legislation.

The main changes to the Portuguese Labour Code are the following:

• Economically Dependent Employees

Economically dependent self-employed employees who provide an activity to the same beneficiary and receive more than 50% of the proceeds of their activity from that beneficiary are now entitled to a set of rights, including: (i) representation of their social and professional interests by trade union associations and employees' councils, even if they are not members; (ii) negotiation of specific Collective Bargaining Agreements through trade union associations; (iii) application of existent and negotiated Collective Bargaining Agreements to employees, as provided for in their terms; (iv) administrative extension of a Collective Bargaining Agreement or arbitration award; and (v) establishment of minimum working conditions (article 10-A).

Specific legislation will further define the right of economically dependent self-employed employees to collective representation.

• Digital Platforms

An employment agreement presumption can be established between self-employed activity providers and digital platform operators if certain indicators are present, as follows: (i) the platform operator setts the activity provider's remuneration; (ii) the platform operator manages the provider's actions and presentation; (iii) the platform operator controls the activity provided, particularly through electronic means or algorithmic management; (iv) the platform operator restricts the activity provider's autonomy with regard to work organization, the ability to accept or refuse tasks, the use of subcontractors, the choice of clients, or providing activity to third parties via the platform; (v) the platform exercises labour powers over the provider, such as deactivating their account; and (vi) the work equipment and tools used by the provider belong to the digital platform operator or are operated by it through a lease contract.

The presumption, which may be rebutted, is applicable to the activities of digital platforms, including those regulated by specific legislation on remunerated passenger transportation in private vehicles from an electronic platform (article 12-A (12)).

• Algorithms and Artificial Intelligence

Collective Bargaining Agreements can only regulate the use of algorithms, artificial intelligence, and associated technologies in a way that is more advantageous to employees (article 3 (3)).  Legal rules on equality and non-discrimination are now applicable to decision-making based on algorithms or other artificial intelligence systems (article 24(3)).  Employers must inform job applicants about the use of algorithms and artificial intelligence (article 106).

• Discriminatory Practices

The grounds for claiming discrimination practices in access to employment, vocational training, or working conditions is expanded, particularly related to the exercise of parental rights, other rights regarding work life balance and caregivers’ rights (article 25 (6)).

Remuneration-related discrimination related to the award of attendance and productivity bonuses, as well as unfavourable assignments in terms of evaluation and career progression, are now considered "discriminatory practices" (25 (7)).

• Parental Protection

Exemption from work is now established in the context of adoption and foster care procedures (article 35 (1) (j)).

Parents now have the option, after enjoying 120 consecutive days of initial parental leave, to combine the remaining days of leave on a part-time basis each day.

It is compulsory for the mother to take 42 consecutive days of leave following childbirth (article 41).

The mandatory leave for the father is extended from the current 20 business days to 28 days, either consecutively or interpolated periods of at least 7 days, within the first 42 days following childbirth.  Of the 28 days, 7 must be taken consecutively after childbirth (article 43 (1)).

An additional right is established for the father to take 7 days of leave, consecutive or interpolated, if they are taken simultaneously with the mother's initial parental leave (article 43 (3)).

Parents now have the right to complementary parental leave, in the form of part-time work for three months, with a normal workload equal to half the full-time, for assistance to a child or adopted child not older than six years, provided that the leave is fully exercised by each parent (article 51 (1) (c)).

• Adoption and Foster Care

There are no longer time restrictions on employees pursuing for adoption or foster care (article 45 (1)).

Absences for adoption and foster family processes do not determine the loss of any rights and are considered as effective work, except as to remuneration (article 65 (1) (k)).

Absences due to gestational mourning, as well as absence for assisted reproduction consultation or prenatal visits, breastfeeding or lactation will not determine the loss of any rights and will be considered as effective work (article 65 (2)).

• Caregiver Employee

A caregiver employee is someone who has been recognized as an informal non-primary caregiver, in accordance with the applicable legislation, upon presentation of the respective proof (article 101-A).

Caregiver employees are entitled to annual leave of five consecutive business days, without pay (article 101 (B) (1) (6)).

During the leave, the caregiver employees cannot perform subordinate work or provide continuous services outside their usual residence (article 101 B (4)).

The caregiver employees are entitled to request part-time work, in a consecutive or interpolated manner, for a maximum period of four years (article 101-C), with flexible working hours, in a consecutive or interpolated manner (article 101-D), and are not required to perform overtime work for as long as assistance/caregiving is required (101 (G)).

The termination of fixed-term employment agreements (Article 143º/3) and dismissal (101º-F) of caregiver employees depends on the prior opinion of the Commission for Equality in Labour and Employment ("CITE").

• Duty to Inform Employees

The employer's duty to provide information to employees is expanded. The employee is now entitled to be informed of: (i) the identification of the user company in case of a temporary employee; (ii) the individual right to continuous training; (iii) in the case of intermittent work, the information provided for in the legally established framework; (iv) the parameters, rules, and instructions on which the algorithms or other artificial intelligence systems are based; (v) the duration and conditions of the probationary period, if applicable; and (vi) the method of payment of the remuneration, including the breakdown of its constituent elements (article 106 (3)).

It is not necessary to include all the elements in the employment agreement; given that if the deadlines are met, some of them may be the subject of later written or electronic communication to the employee.

The employer must ensure the conservation of proof of transmission or receipt of the information provided, which must be presented to the labour inspection service upon request (article107 (5) and (6)).

• Information Concerning The Provision of Work Abroad

The employee who carries out his activity in the territory of another State for a period exceeding one month is entitled to the following information: (i) remuneration to which he is entitled under the law applicable in the host State, in situations of posting; (ii) allowances related to posting and reimbursement of travel, accommodation and meal expenses; and (iii) official website of the host State (article 108(1)).

• Probationary Period

Employees seeking their first job or who have been unemployed for a long time will have their probationary period reduced or excluded depending on the duration of their previous fixed-term employment agreement (celebrated with a different employer) being equal to or greater than 90 days (article 112 (5)).

The probationary period may be reduced if the duration of a professional internship with positive evaluation for the same activity and a different employer has been equal to or greater than 90 days in the past 12 months (article 112 (6).

When the probationary period is longer than 120 days, the termination of the employment agreement by the employer becomes subject to a 30-day prior notice (article 114 (3)).

In the case of termination of open-ended employment agreements of employees seeking their first job or long-term unemployed, the termination is subject to communication to the Authority for Working Conditions (“ACT”) within 15 days after the termination (114 (6)).

Abusive terminations (in abuse of right) will be subject to the regime of the effects of unlawful dismissal, particularly with regard to the employee's right to claim: (i) compensation for damages (material and non-material); (ii) reinstatement in the company or compensation in lieu; and (iii) compensation for interim remuneration.

• Fixed Term Employment Agreements

In unfixed term employment agreements the expected duration of the agreement must now be included.

Compensation for the expiry of term employment agreements (both for fixed and unfixed term) is increased to 24 days of basic pay and seniority allowance for each complete year of service (articles 344 (2) and 345 (4)).

• Teleworking

The employment agreement and the applicable collective bargaining agreement must now determine the compensation, fixed or variable, due to the employee for additional expenses related to teleworking/hybrid work arrangements (article 168 (3)).

In the absence of an agreement on a fixed amount, additional expenses are deemed to be those corresponding to the acquisition of goods and/or services that the employee did not have before teleworking or working in a hybrid work arrangement, as well as those determined by comparing the corresponding expenses in the last month of face-to-face work (article 168 (4)).

The compensation is considered an expense for the employer and does not constitute work income for tax purposes up to the limit to be defined by ministerial order (article 168 (6)).

• Temporary Work

After reaching the maximum duration of the temporary work employment agreement, the succession in the same job or professional activity by a temporary employee or an employee hired for a fixed term, concluded with the same employer or company that is in a relationship of control or group relationship, or maintains common organizational structures, is prohibited. The prohibition applies before the expiration of a period equal to one third of the duration of the agreement, including renewals (article 179 (1)).

A fixed-term temporary employment agreement may now be renewed only 4 times (article 182 (2)).

The duration of subsequent temporary work agreements between different users concluded with the same employer or company in a controlling or group relationship or with a common organizational structure, cannot exceed 4 years; otherwise, the agreement will be converted into an open-ended employment agreement for temporary assignment (article 182 (8) and (9)).

• Overtime Work

Overtime work exceeding 100 hours per year must be paid at the hourly rate of pay with the following increases:

(a) 50 % for the first hour or fraction thereof and 75 % per subsequent hour or fraction thereof, on a working day;

(b) 100% for each hour or fraction thereof, on a mandatory or complementary weekly rest day or on a public holiday (article 268 (2)).

• Employee's Credits

In the event of termination of the employment agreement by any means, the employee can no longer waive the credits arising from the employment agreement (e.g. holiday and Christmas allowances, holiday pay and training credit hours), except if such waiver is made through a judicial transaction (article 337 (3)).

• Compensation in Case of Collective Dismissal

Compensation in case of collective dismissal is now 14 days' base pay and seniority payments for each full year of seniority (article 366 (1)).

In addition, the employee may also activate the labour compensation guarantee fund (article 366 (3)).

• Outsourcing

In outsourcing, the applicable collective bargaining agreement of the beneficiary of the activity also applies to the service provider, when more favourable, after 60 days of activity in favour of the acquiring company (article 498-A (1)).

Before that, the service provider is entitled to the minimum remuneration provided for in the collective bargaining agreement that binds the beneficiary of the activity (article 498-A, (3)).

It is not permitted to resort to the acquisition of external services through third-party entities to meet needs that were provided by an employee whose agreement was terminated in the previous 12 months due to collective dismissal or job position extinction.

• Collective Labour Relations

Even if there are no unionized employees, trade union activity can still be exercised in the company under specific applicable conditions, if it does not affect the normal functioning of the productive activity (article 460 (2)).

If an employee is already covered by an extension ministerial order, they can no longer choose a collective bargaining agreement (article 497 (5)).

In case of termination of a collective bargaining agreement, the recipient party may request arbitration from the President of the Economic and Social Council to assess the grounds for the termination, preventing the agreement from entering a survival regime (article 500-A).

• Application in Time and Entry Into Force

This Decent Work Agenda Law shall enter into force on 1 May 2023, except for matters relating to the termination and expiry of collective bargaining agreements and the arbitration process, which entered into force on 4 April 2023.

Employment agreements concluded before the entry into force of this law shall be subject to this framework, except for the regime applicable to the validity of the employment agreement and/or its effects, in which case the previously applicable regime shall remain in force.

Collective bargaining agreements clauses that contradict the new rules must be amended in the first revision that takes place within 12 months following the entry into force of this law, under penalty of nullity. However, a transitional period, until 1 January 2024, was established for the amendment of collective bargaining agreement clauses contrary to the new regime for payment of overtime work.

The new framework is not applicable to fixed-term employment agreements concluded before the entry into force of this law, regarding their admissibility, renewal, and duration, as well as the renewal of temporary employment agreements.

 The path has been extended, but the European Union (EU),  has one goal in mind: transparency and equal pay. In this sense, in March 2021 the Proposal for a Directive of the European Parliament and of the Council was presented, strengthening the application of the principle of equal pay for equal work or work of equal value between men and women through wage transparency and compliance monitoring mechanisms.

In December 2022, Parliament and the countries of the European Union managed to reach an agreement in negotiations on pay transparency measures.

A general vote on the Directive is awaited and it will come into force 20 days after publication in the Official Journal, with the Member States having 3 years to transpose it into their respective legal systems. We present below the main axes and measures of the Directive:

• Pay transparency for job seekers

Employers will now be required to provide information about the salary amount for the vacancy they advertise and may do so in the vacancy announcement itself or at a time prior to the job interview.

In addition, the candidate may not be asked for any information regarding his salary history during any phase of the recruitment process.

• Pay transparency and career progression in the employing entity

Employees will now have the right to simple access to salary and career progression criteria, as well as to request information from the employer on their individual salary level and average salary levels, broken down by gender, for categories of employees performing the same functions as them or functions of equal value to them. 

• Salary transparency at an external level

Employers with more than 250 employees will have to publicly report the gender pay gap in categories of employees performing the same job or jobs of equal value.

Employers who demonstrate a pay gap on the basis of these factors of more than 5% and who cannot justify such a gap with objective, gender-neutral factors must either conduct a joint pay review with employee representatives or, if not applicable, appoint one or more employees to do so.

Confidentiality clauses that do not allow employees to disclose their remuneration are also prohibited.

• Consequences of violating pay transparency and equality

Employers who violate the defined rules and whose employees suffer pay discrimination may be required to pay compensation to the employees concerned, including the amount of the pay gap they should have received as well as their bonuses.

Similarly, sanctions will be defined by the Member States for employers who violate the principle of transparency and equal pay, including the imposition of fines.

It should be noted that in cases of violation of these principles, the onus will be on the employer to prove that there was no wage discrimination.

Yesterday, Decree-Law 21-B/2023, of March 30,  extended until December 31, 2023 the exceptional and temporary mechanism for adjusting the production costs of electricity in the Iberian Electricity Market (MIBEL) set by Decree-Law 33/2022, of May 14.

Those measures were applied by Portugal and Spain last year to face the strong instability in the energy sector, and included the setting of a reference price for natural gas consumed in the production of electricity traded at the MIBEL - a measure that would be in force until May 31, 2023.

In addition, this new regulation, which comes into force today, excludes from the cost of liquidation of the market adjustment value, consumption related to:

• Fixed-price electricity supply contracts entered into before April 26, 2022; and
• Contracts of hedging instruments entered into after April 26, 2022 and before March 7, 2023 and referring to the period between the months of May and December 2023.

It also requires the market agents to communicate to the appointed electricity market operator, to the global manager of the SEN and to ERSE the information relating to the contracting, within:

• 5 days, as of March 31, 2023, for the case of fixed price contracts entered into before April 26, 2022 and for hedging instruments applicable in the month of May 2023; and
• 15 days for hedging instruments applicable in the months of June to December 2023.