Impact of the Constitutional Court judgment regarding holidays, overtime and compensatory rest
By Dr. Eduardo Serra Jorge
Judgment 602/2013 of the Constitutional Court, which dealt with the constitutionality of six articles within the Labour Code, has amended Law 23/2012 of 25 June and is immediately and automatically applicable to all procedures adopted under the referred law since its entry into force in August 2012.
The rules of the Labour Code declared unconstitutional by Judgment 602/2013 of the Constitutional Court will expire, retroactively, from its effective date and are reset to the old laws that regulated the same labour situations.
They reinstated the articles revoked by the articles that came into force, now declared unconstitutional.
As for holidays, the impact that the decision of the Constitutional Court has is that employees covered by individual contracts or collective labour agreements celebrated after December 1 2003, guaranteeing an increase of three holiday days, shall have the right to enjoy them until the end of the year.
With regard to compensatory rest, the immediate consequences of the Judgment of the Constitutional Court are that companies are required to provide workers with compensatory rest for the overtime worked in the last year on a business day, on the supplementary weekly rest day (Saturday) or on holiday, whenever collective agreements, employment contracts or any agreements between the company and the employees, concluded before August 1 2012, so provide.
Regarding payment for overtime, the decision of the Constitutional Court was that the rules of the conventions are suspended until July 2014, but thereafter returned into force.
Thus, the payment of overtime hours will increase again in August 2014 to the levels before 2012, since the Constitutional Court authorised employees with more favourable collective agreements to receive less for the hours of overtime, but only until August 2014.
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Dr Eduardo Serra Jorge is founding member, senior partner and CEO of lawyers firm Eduardo Serra Jorge & Maria José Garcia – Sociedade de Advogados, R.L., created in 1987.
In his column, he addresses legal issues affecting foreign residents in Portugal.
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