A quiet and discrete revolution in the Portuguese courts: the twilight of the employment contract?

Author:Sónia De Carvalho
Position:Portucalense Infante D. Henrique University, Department of Law, Researcher at IJP, Portucalense Institute for Legal Research, Porto, Portugal
Pages:221-243
A quiet and discrete revolution in the Portuguese courts:
the twilight of the employment contract?
Assistant professor Sónia de CARVALHO
1
Abstract
The distinction between an employment contract and a provision o f services
contract is a recurring theme in the Portuguese courts, regularly associated with the use of
the provision of services contract to dissimulate an employment relationship under an
apparent self-employment rapport. The lawmaker, in order to fight the misuse of the
provision of services contract within an employment rapport, established, through Lei
63/2013, 27.08, updated by the Lei 55/2017, 17.07, an administrative procedure in article
15-A of Lei 107/2009, 14.09, a nd a special lawsuit to recognize the existence of an
employment contract, in article 186-K of the Código de Processo d o Trabalho (Labour
Procedure Code- CPT), whenever there is a provision of activity with the characteristics of
an employment contract. The analysis of the most recent higher courts case law reveals a
clear trend to qualify rapports, whose legal nature is under analysis, as provision of
services contract, in a sense, paradoxically, contrary to the efforts made by the lawmaker.
In this paper, we therefore seek to scrutinize this incomprehensible favouring by the higher
courts of the provision of services contract, whose maintena nce may lead in the future to an
inevitable weakening of the employment contract, damaging employees, Labour Law and
Society.
Keywords: labour contract, provision of services contract, case law, lab our law.
JEL Classification: K31
1. Introduction
The distinction between an employment contract and a provision of
services contract is a recurring theme in the Portuguese courts, that is usually
associated with the dissimulation of an employment rapport under a written
document regarding a provision of services contract.
The qualification of a contract is based on the analysis of the contract,
taking into account the terms in which the contract was actually performed. The
nomen iuris or the negotiation statements of the parties are not decisive.
The determination of legal subordination, the defining criterion of the
labour contract, is, therefore, an arduous task, given the various shades that reality
offers, assuming relevance a set of signs of subordination, produced by case law
and literature.
In view of the difficulties regarding the legal subordination and
qualification of the employment contract by the courts and the proliferation of the
1
Sónia de Carvalho - Portucalense Infante D. Henrique University, Department of Law, Researcher at
IJP - Portucalense Institute for Legal Research, Porto, Portugal, scarvalho@upt.pt.
222 Volume 8, Issue 1, March 2018 Juridical Tribune
fraudulent use of the provision of services contract, the legislator created a
presumption of a labour contract in article 12 of the Código do Trabalho (Labour
Code- CT/2003), later amended by Lei 9/2006, dated 20.03, currently assuming the
outlines established in article 12 CT/2009.
The legislator, in order to weaken the misuse of the provision of services
contract in employment relationships, established, through Lei 63/2013, of 27.08,
updated by the Lei 55/2017, 17.07, the administrative procedure provided for in
article 15-A of Lei 107/2009, 14.09 and the special lawsuit to recognize the
existence of an employment contract, provided for in article 186-K CPT, whenever
there is a situation of provision of activity with the characteristics of an
employment contract.
The analysis of the most recent case law of the Portuguese higher courts,
however, discloses a clear trend to qualify relationships, whose legal nature is
under analysis, as a provision of service contract, in a sense, paradoxically,
contrary to the efforts made by the lawmaker to combat the abuse of this contract.
It may be referred, as examples of this tendency, the incomprehensible
refusal to apply the presumption of article 12 CT/2009 to relationships established
before the respective enactment, the easiness required to the employer to disregard
the presumption of article 12 CT, the relevance recognized to the contract name
(nomen iuris), the importance given to employer´s directive power in activities
characterized by autonomy to the detriment of the inclusion of the services
provider within the organization of the beneficiary of the activity, the weighting of
indicia, such as the issuance of a receipt concerning an independent activity (also
known as green receipt) and the absence of holidays and Christmas and holidays
allowances payment, traditionally used to conceal the labour nature of the
relationship, and, finally, overvaluation of the possibility of the provider of
services replacement by a third party.
In order to contextualize the issue we propose to approach in this paper, it
is necessary to make some observations about the difficulty in distinguishing the
employment contract from the provision of services contract.
2. The relevance of nomen iuris in the qualification of the contract
We begin by emphasizing that the qualification of a contract is based on
the analysis of the contract, taking into account the terms in which the contract was
actually performed. Therefore, nomen iuris or the legal concepts attributed to it by
the parties are not decisive
2
.
2
See Bernardo da Gama Lobo Xavier, Manual de Direito do Trabalho, 2ª ed. (Lisboa: Verbo, 2014),
352-353.
In case law, see among others, the Supremo Tribunal de Justiça decisions of 17.12.2009, Proc.
724/06.9TTCBR.C1.S1, of 22 .09.2010, Proc. 4401/04.7TTLSB.S1 and of 16.01.2008, Proc.
07S2713, available in www.dgsi.pt. In Italian case law, we highlight the decision of th e Cass
21.11.2000, n. 15001, in Giust civ Mass, 2000, 2387.

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