Universidade Lusíada Editora
Lisboa • 2022
Minerva
Revista de Estudos Laborais
Ano XII– I da 4.ª Série– N.º 5
2022
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MEDIATECA DA UNIVERSIDADE LUSÍADA – CATALOGAÇÃO NA PUBLICAÇÃO
MINERVA. Lisboa, 2002
Minerva : Revista de Estudos Laborais / propr. Fundação Minerva – Cultura – Ensino e Investigação Cientíca ; dir. António
José Moreira. – A. 1, n. 1 (2002) - A. 6, n. 10 (março 2007). – Coimbra : Almedina, 2002-2007. - 24 cm. - Semestral.
ISSN 1645-5509
Substituída por: Minerva : Revista de Estudos Laborais. ISSN 1645-5509. S. 2, n. 1 (junho 2008)-
I – MOREIRA, António José
1. Direito do Trabalho - Portugal - Periódicos
CBC KKQ1261.2.M56
Ficha Técnica
Título
Minerva – Revista de Estudos Laborais
Numeração
Ano XII - I da 4.ª série - n.º 5 (2022)
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Fundação Minerva – Cultura – Ensino e Investigação Cientíca
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redatorial
António Monteiro Fernandes (Universidade Nova de Lisboa, Portugal), Javier Gárate Castro (Universidade de Santiago de Compostela,
Espanha), Maurizio Ballistreri (Universidade de Messina, Itália), Nelson Mannrich (Universidade de S. Paulo, Brasil), Teresa Coelho Moreira
(Universidade do Minho, Portugal)
Colaboradores
permanentes
Albertina Pereira, António Monteiro Fernandes, António Moreira, Germán Barreiro González, Jaime Cabeza Pereiro, Javier
Gárate Castro, Jesús Martínez Girón, Joaquín Garcia Murcia, Manuel Carlos Palomeque López, Mário Roriz, Nelson Mannrich,
Paulo Sousa Pinheiro, Rafael Sastre Ibarreche, Teresa Coelho Moreira, Wilfredo Sanguinetti Raymond, João Zenha Martins
Colaboradores neste
número
António Moreira, Jaime Cabeza Pereiro, Javier Gárate Castro, João Leal Amado, João Zenha Martins, Maurizio Ballistreri,
Nelson Mannrich, Paulo Sousa Pinheiro, Teresa Coelho Moreira, Teresa Pizarro Beleza
Depósito Legal
185414/2002
ISSN
1645-5509
DOI
https://doi.org/10.34628/dd52-t011
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Minerva – Revista de Estudos Laborais | Ano XII – I da 4.ª Série – N.º 5 (2022) 3
SUMÁRIO
O Instituto Lusíada de Direito do Trabalho e a Revista
O Diretor
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I. DOUTRINA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Telework
João Leal Amado e Teresa Coelho Moreira
. . . . . . . . . . . . . . . . . . . 9
O Whistleblowing no Direito do Trabalho Português – Algumas Reexões
Adicionais
Paulo Sousa Pinheiro
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Trabalho digno e diversicação tipológica dos contratos sem duração
indeterminada: nótula sobre contrato de trabalho de estudantes em férias
escolares e interrupções letivas
João Zenha Martins
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
II. COLABORAÇÃO INTERNACIONAL . . . . . . . . . . . . . . . . . . . . . 73
El Concepto de Tiempo de Trabajo en su Relación Binaria con el
de Tiempo de Descanso
Jaime Cabeza Pereiro
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
La Normativa Española Sobre Empleo Público Temporal y su Necessaria
Compatibilidad, Todavía no Conseguida por Completo, con el Acuerdo Marco
Sobre el Trabajo de Duración Determinada
4 Minerva – Revista de Estudos Laborais | Ano XII – I da 4.ª Série – N.º 5 (2022)
Javier Gárate Castro . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Lavoro e Ambiente Nell’ Economia 4.0
Maurizio Ballistreri
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .133
Meios Voluntários na Solução de Conitos Trabalhistas, no Brasil x
Protagonismo do Estado: em Busca de Ampliação de Espaços Privados
Nelson Mannrich
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .151
III. EVENTOS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .197
XXV Congresso Nacional de Direito do Trabalho
António José Moreira
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .199
XXV Congresso Nacional de Direito do Trabalho
Teresa Pizarro Beleza
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .213
Conferência: Dignidade e Trabalho: a Reforma Anunciada
António José Moreira
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .221
Minerva – Revista de Estudos Laborais | Ano XII – I da 4.ª Série – N.º 5 (2022) 5
O INSTITUTO LUSÍADA DE DIREITO
DO TRABALHO E A REVISTA
…Mas a realidade mostra que o projeto da
modernidade falhou rotundamente: não conseguiu
conciliar justiça com liberdade, menosprezou a
verdade em nome da tolerância; deixou de ter
controlo sobre a economia, empobreceu os pobres
e enriqueceu os ricos… esqueceu ‑se da democracia
material para a reduzir à meramente formal…
Construtores da Cidade Feliz
Manuel Linda
… a verdadeira inclusão: a inclusão que dá o
trabalho digno, livre, criativo, participativo e solidário.
Terra, Casa, Trabalho
Papa Francisco
1. Nos últimos tempos, o Direito do Trabalho português tem vivido o
signo da reforma. Não foi, pois, por acaso, que no dia 14 de fevereiro do ano em
curso, com o patrocínio do CEJEA– Centro de Estudos Jurídicos, Económicos
e Ambientais, da Universidade Lusíada, e com o protocolo celebrado com
a ACT – Autoridade para as Condições de Trabalho, realizamos no campus
6 Minerva – Revista de Estudos Laborais | Ano XII – I da 4.ª Série – N.º 5 (2022)
do Porto da Universidade a Conferência: Dignidade e Trabalho: A Reforma
Anunciada. A Agenda do Trabalho Digno havia sido aprovada na Assembleia
da República, em votação nal global, no dia 10, do mesmo mês, e havia, pois,
que por mãos à obra. A Aula Magna da Universidade Lusíada no Porto, com
capacidade para mais de trezentas pessoas, foi pequena para acolher tamanha
procura. Só Inspetores do Trabalho eram mais de cento e quarenta, e que
vieram das partes mais longínquas do país, bem como muitos prossionais do
foro. A Conferência foi assegurada, além do Diretor da Revista, pelos seguintes
Professores: Monteiro Fernandes, Garcia Pereira, Joana Vasconcelos, Teresa
Coelho Moreira, Paulo Sousa Pinheiro, Júlio Gomes, Maria do Rosário Palma
Ramalho, Maria Regina Redinha e Rui Ataíde.
O JusGov– Centro de Investigação em Justiça e Governação, da Escola
de Direito da Universidade do Minho, associou ‑se ao evento através da Profª.
Doutora Teresa Coelho Moreira; e o CEJEA, através de mim próprio, associou‑
‑se a dois eventos que ocorreram posteriormente: o primeiro na Universidade
Nova de Lisboa e o segundo na Universidade do Minho.
2. O XXVI Congresso Nacional de Direito do Trabalho ir ‑se ‑á realizar no
Altis Grand Hotel, em Lisboa, nos dias 9 e 10 de novembro próximo, e destinar‑
‑se ‑á, na sua maioria, a claricar aspetos nebulosos, e muitos são eles, nas
soluções legais encontradas na Lei nº 13/2023, de 3 de abril, no âmbito da
Agenda do Trabalho Digno. Visará, ainda, apontar aspetos omissos e lacunas
existentes que continuam por resolver.
3. O Instituto Lusíada de Direito do Trabalho tem em curso a XXI edição da
Pós ‑Graduação em Direito do Trabalho, sendo os auditores, na sua quase tota‑
lidade, oriundos de outros estabelecimentos de ensino superior e com expe‑
riência prossional, sem prejuízo da existência de graduados na Universidade
Lusíada.
O Diretor
I
DOUTRINA
TELEWORK
João Leal Amado
Professor Catedrático e Investigador Integrado do
Instituto Jurídico da Faculdade de Direito da Universidade de Coimbra
Investigador Colaborador do CEJEA da
Faculdade de Direito da Universidade Lusíada
Teresa Coelho Moreira
Professora Associada com Agregação
da Escola de Direito da Universidade do Minho
Coordenadora Cientíca do Livro Verde sobre o Futuro do Trabalho em Portugal
Investigadora Integrada do JusGov
Coordenadora do Grupo de Direitos Humanos
Investigadora Colaboradora do CEJEA
Faculdade de Direito da Universidade Lusíada
https://doi.org/10.34628/m3ej‑bc16
9
Minerva – Revista de Estudos Laborais | Ano XII – I da 4.ª Série – N.º 5 (2022) 11
TELEWORK
1
João Leal Amado
2
Teresa Coelho Moreira
3
https://doi.org/10.34628/m3ej‑bc16
Abstract: The outbreak of Covid ‑19 pandemic, turned teleworking into the “new nor‑
mal” in work relationships. Our idea is that, , even after the pandemic, this centrality
of teleworking will not disappear with it. The Portuguese Labour Law has already
introduced some rules for the provision of telework, and this legislation was recently
even revised and strengthened by Law No. 83/2021 from 6th December. This text aims
at providing the reader with a general overview of the major novelties introduced by
the new law, in terms of teleworking and the right to disconnect.
Keywords: Telework, control and surveillance, right to disconnect, privacy, new
employer’s duties and obligations.
1
This article corresponds, with some changes, to our article published in Diritti lavori mercati (international
section), number 2/2022, Italy.
2
Full Professor and integrated researcher of Instituto Jurídico, at the Faculty of Law, University of Coimbra,
collaborator researcher of CEJEA.
3
Associate Professor with Habilitation at the School of Law of the University of Minho. Integrated researcher
of JusGov and coordinator of the Research Group on Human Rights, collaborator researcher of CEJEA.
João Leal Amadoe · Teresa Coelho Moreira
12 Minerva – Revista de Estudos Laborais | Ano XII – I da 4.ª Série – N.º 5 (2022)
Introduction:
1.1. The world is currently going through unique times of great uncer‑
tainty, experiencing one of the most turbulent periods in world history.
We are witnessing major changes at various levels that lead to conne‑
ment, quarantine, social distancing and a change in people’ behaviour. Given
this situation, countries had to adopt measures ‑and Portugal made no
exception ‑ to emphasise the role of digital technologies ‑based labour and,
thus, telework in the modality of telework from home.
“Going to work” usually means that a worker will physically head to a
production unit (the factory, the shop, the oce, the bank) owned and man‑
aged by someone else, where the worker will spend a few hours a day, fulll‑
ing the obligations arising from the respective contract. In fact, the provision
of work typically takes place within a company, where the worker’s activity
is coordinated with that of his colleagues and where the employer’s powers
of management, supervision and discipline are exercised. By working in a
company that belongs to someone else , the worker is fully aware that he/
she is in a professional space ‑time, a space ‑time of hetero ‑availability, which
ends when, at the end of the working day, the worker leaves the company
and returns home, to his/her own space ‑time of self ‑availability, privacy and
intimacy.
However, this is not always the case. In fact, more and more workers are
providing their activity outside the company, including from their own home.
And this phenomenon has progressively been intensied in the post ‑industrial
societies in which we live (the so ‑called “information society”) ‑marked by
strong scientic and technological progress ‑ , through the so ‑called telework.
It is often referred to as a virtual society .
Right now, in the era of pandemic, , more and more people is working
from home , is teleworking. And Portugal was not an exception in this scenario.
Telework isregulated under the Labour Code as an atypical and marginal
Labour Law contractual modality, , and is distinguished from the typical work,
which implies a delimited space ‑time, located somewhere else outside one’s
TELEWORK, p. 9‑28
Minerva – Revista de Estudos Laborais | Ano XII – I da 4.ª Série – N.º 5 (2022) 13
home
4
. This new modality started to be used in all activities and functions
compatible with it as a strategy to face the spread of COVID ‑19 virus, and as
a way to prevent contagion. It became the new normal for many employees.
In fact, 2020 was the year of the big remote work shift and Covid ‑19 pan‑
demic marked a before and an after for Remote Work.
The adoption of remote work had been already growing at a fast pace in
the last few years and the Covid pandemic lockdown restrictions worldwide
ended up highly accelerating its adoption via ‘work from home’ policies set
forth in record time across companies of all types and industries all over the
world.
1.2. We think that, although many people will return to the workplace as
economies will reopen, several employers share the idea that hybrid models
of remote work for some employees can continue to apply .
The virus has disrupted cultural and technological barriers that prevented
remote work from spreading in the past, thus setting in motion a structural
shift in where work takes place, at least for some people.
The experience of these last months of widespread practice of telework
has shown that Portuguese law, which already contained very relevant princi‑
ples on this matter, needed to be reviewed and strenghtened , drawing some
lessons from the pandemic. And this is precisely what the legislator did with
Law 83/2021, from 6th December, which came into force on 1st January 2022.
Based on our personal opinion , that was a good option, since we have always
maintained that the time for change was now. We don’t think that this is a
biased vision of reality, because if it’s true that telework got accentuated in
a time of pandemic, it is also true that it is deemed to stay relevant, although
in dierent ways in the future. Therefore, it is clear that the main challenge is
to increase the existing advantages of telework and reduce its disadvantages.
And we think that this Law is a good way to go in this direction.
The Portuguese legal regime on telework changed under many
aspects. This Law introduces several changes in telework regime, in the form
4
In 2014, according to data from Green Book of the Employment Market / 2016– Portuguese Ministry of
Labour, only 0,05% of the Portuguese population was working under the telework regime, which compares
with the EU average of 8%.
João Leal Amadoe · Teresa Coelho Moreira
14 Minerva – Revista de Estudos Laborais | Ano XII – I da 4.ª Série – N.º 5 (2022)
of amendments and additions to the Labour Code, as well as to Law 98/2009,
from 4th September– the law that regulates accidents at work and occupational
illnesses.
The major issues raised in Portugal by the fruitful experience of compul‑
sory telework during the pandemic can, in our view, be condensed around the
following topics, which constituted the dierent challenges for the legislator
and that were dealt with in Law 83/2021, from 6th December:
i) Solving problems of a conceptual nature, namely regarding the deni‑
tion of telework within the broader framework of distance work. Teleworking
seems to be proled as one of the possible types of distance work (teleworking
= distance work + ICT) and, within teleworking, its provision from the worker’s
home is the most common type , but not the only one;
ii) Clarifying the possible sources of telework, by reiterating that, in princi‑
ple, it requires the mutual agreement between the parties, without prejudice
to the fact that there are cases in which the law recognises the right of the
worker to telework, namely in the context of parenthood. On the contrary,
under no circumstances may telework be imposed by the employer to the
worker, supposedly based on his/her management powers.
iii) Densifying and clarifying the limits of the employer’s powers of control
and surveillance in comparison with the protection of teleworker’s privacy. The
employment contract is, as we know, a contract featured by the legal subordi‑
nation of the worker in relation to the employer, who has the power to direct,
supervise and control the way in which he/she carries out his/her work; but
the law, at the same time, protects the privacy of the teleworker, which raises
several questions, starting with the extent and intensity of the employer’s
control in home teleworking. The home is our space of greatest privacy and
intimacy, being, at the same time, the workplace for many teleworkers. In this
context, what type of control and monitoring of the worker may be carried
out by the employer? Will it be admissible, for example, to impose on the tel‑
eworker to keep the video camera permanently on? According to the National
Commission for Data Protection, in a guideline issued right upon the outbreak
of pandemic, the answer is no. But the questions, in this regard, are numerous
and complex, lacking some specic regulatory framework .
TELEWORK, p. 9‑28
Minerva – Revista de Estudos Laborais | Ano XII – I da 4.ª Série – N.º 5 (2022) 15
iv) Reviewing the regime of visits to the workplace, when this coincides
with the teleworker’s home. According to the current law, the visit of the
employer must only have the purpose of controlling the work activity and
the work tools and may only take place between 9 a.m. and 7 p.m., with the
assistance of the employee or of a person appointed by him/her. There are,
however, several bills under discussion in the Portuguese parliament, some
of which require, in all cases, the indispensable agreement of the employee
for this purpose; others allow, in the absence of an agreement, the employer’s
visit, but only provided that a specic minimum notice period is observed.
There are also proposals concerning the inspection of working conditions by
the Labour Inspectorate, establishing that inspection actions, which imply
visits to the home of the teleworker, must be carried out within the period of
9 to 19 hours, within working hours and with a minimum of 24 hours’ notice
to the worker.
v) Addressing the issue of the relationship between working time and life
time. In fact, teleworking and time have an ambivalent relationship: indeed
, does this represent an advantage or a disadvantage of teleworking? Does
telework promote and facilitate the conciliation between professional life
and the worker’s personal and family life? Or, on the contrary, does telework
promote confusion between these two parts of the life of a person (especially
a woman) who works from home, causing harmful eects? According to the
current CT, the teleworker enjoys the same rights and duties as other work‑
ers, namely as regards the limits of normal working hours, but the teleworker
may be exempted from specic working constraints . The doubt arises as to
whether, in telework, people is not working even more. And the challenge of
the “right to disconnection” loudly comes back to the fore.
vi) Clarifying the meaning and extent of the principle of equal treatment
between teleworkers and presential workers, namely in issues such as work
accidents or the payment or non ‑payment to the teleworker of certain capital
conferement of a non wage ‑based nature, such as meal or food subsidy.
vii) Regarding the work tools: who has to own them and who is paying for
the expenses? According to Portuguese law, the individual telework contract
shall specify the ownership of the work tools , as well as who is responsible
João Leal Amadoe · Teresa Coelho Moreira
16 Minerva – Revista de Estudos Laborais | Ano XII – I da 4.ª Série – N.º 5 (2022)
for their installation and maintenance and for paying the inherent expenses
of consumption and use. In the absence of such stipulation in the contract,
it shall be presumed that the work tools belong to the employer, who must
ensure their installation and pay for the related expenses of use and mainte‑
nance. However, this supplementary rule, leaving the matter at the parties’ free
discretion , has been the object of many criticisms (between the strong and
the weak, may this freedom oppress? ), requiring a review by the legislator
and by collective bargaining, in the sense that teleworking costs must be fully
borne by the employer (after all, who’s the beneciary of the work developed,
the one who prots from paid teleworking). There are even proposals going in
the direction of legally establishing a minimum monthly amount to be paid,
compulsorily, by the employer, as compensation for expenses.
viii) Seeking to a mitigate the condition of isolation of the teleworker,
one of the most serious inconvenience of telework. Indeed, facing the dysto‑
pia of a viral world, of human distancing, of virtual relationships, of loneliness,
what solidarity is left ? Home teleworking reinforces the tendency towards
individualisation of the employment relationship, weakens the mesh that binds
workers together and constitutes a further, particularly complex, challenge for
the structures of collective representation of workers ─ after all, labour law is a
product of solidarity and the solitary man tends to be less keen to solidarity ...
5
2. The new legal framework
2.1. Changes related to the notion of telework as under article 165 were
made, providing that, in order for telework to be considered as such, the employer
is not entitled to predetermine the place where it will be exercised. And the new
rules also explicitly recognise mixed or hybrid work arrangements to
be considered as telework.
5
For more developments, see JOÃO LEAL AMADO and TERESA COELHO MOREIRA, “O regime jurídico do
contrato de teletrabalho subordinado no ordenamento português”, in LTR revista, 85, number 12,
2022, and TERESA COELHO MOREIRA, “Teletrabalho em tempos de pandemia: algumas questões”, in RIDT,
I, number 1, 2021.
TELEWORK, p. 9‑28
Minerva – Revista de Estudos Laborais | Ano XII – I da 4.ª Série – N.º 5 (2022) 17
Likewise, with the new regime, some parts of the legal framework under
article 165, no. 2, are applicable to workers and not only to employees, where
there isn’t legal subordination but economic dependency.
2.2. On the other hand, while telework can improve employees’ quality of
life, it can also constitute a constraint for both the employee or the employer.
It is thus crucial that, outside exceptional circumstances such as the COVID19
lockdowns, telework remains of a voluntary and reversible nature and cannot
be forced upon the employee. This was reinforced under articles 166 and 167,
which sets forth that teleworking agreements must be fixed in writing,
either as a part of the employment contract or as a separate agreement
and the duration of the agreements may be indefinite or having a fixed
term of up to six months, automatically renewed for the same period.
Before these amendments were introduced, agreements required for a
fixed duration of up to three years.
The minimum notice period by either party to terminate a fixed
agreement is 15 days prior to the end of the term and 60 days for
indefinite agreements.
It shall also be noted that, according to article 166, no. 6, in cases in which
the proposal is made upon employer’s initiative, the employee can challenge
it, without the need to justify it, and his/her refusal cannot constitute a ground
for the imposition of any sanction, including dismissal.
If the proposal comes from the employee, the employer may also refuse
it in some cases, and must do so in writing , by reporting the grounds for
refusal. However, according to article 166 ‑ A, there are cases where the
employer cannot reject the employees’ request and those cases, ‑where
there is a unilateral right to telework ‑ have also been expanded when
compared to the previous regime. Before the introduction of these
changes, this possibility existed for employees who were victims of
domestic violence or with children under the age of three. Now it was
broadened to include employees with children aged between three
and eight, provided the company has 10 or more employees and the
claimant meets further family status conditions. It is applicable if both
João Leal Amadoe · Teresa Coelho Moreira
18 Minerva – Revista de Estudos Laborais | Ano XII – I da 4.ª Série – N.º 5 (2022)
parents meet the conditions for telework, by fullling other requirements, more
precisely they shall exercise this right in sequential periods of equal time and
within a maximum timeframe of 12 months, which means that both parents
cannot benet of the telework at the same time. It is also valid for single ‑parent
families or cases where only one parent meets the conditions for telework. And
also, in some cases, for carers, pursuant to number 5 of this article.
All the above appears as being in line with Directive (EU) 2019/1158 of the
European Parliament and of the Council from 20th June 2019 on work ‑life bal‑
ance for parents and carers and repealing Council Directive 2010/18/EU.
Of course, these last cases are related to work ‑life balance. Indeed, if tel‑
ework can make it easier to balance work and private life and reduce the costs
of commuting, it can also lead to the blurring of professional and private life,
making very dicult to guarantee this conciliation
6
.
On the other hand, it can also lead to an increase in the number of hours
actually worked and in the intensity of work, along with diculties in discon‑
necting from work, thus causing detrimental eects on family time
7
.
2.3. One of the biggest issues, as previously mentioned, is related to costs
and to who pays for the expenses.
In fact , telework raises the issue of the availability and costs of both
hardware and software needed for the workers to perform their tasks. It can
also stress unequal access to ecient communication networks and can imply
additional costs for telework. This all urges for greater clarication about how
employers can contribute to expenses linked to working from home. This is
precisely what article 168 tried to deal with, though leaving space to several
6
See European Economic and Social Committee, Teleworking and gender equality – conditions so that
teleworking does not exacerbate the unequal distribution of unpaid care and domestic work between women
and men and for it to be an engine for promoting gender equality, 2021, and EIGE, Gender equality and the
socio ‑economic impact of the COVID ‑19 pandemic, 2021.
7
Like the European Parliament stated in Flash Eurobarometer 2022 | Women in times of Covid ‑19, the share
of women agreeing that because of the pandemic’s impact on the job market, they could do less paid work
(meaning less work for a salary or wage) than they wanted to, is largest in Portugal– 42%. It is also important
to highlight that women in Portugal ‑ 36% ‑ are the most likely to find that school and childcare closures and
the need for home ‑schooling / caring for children at home had a major negative impact on their mental
health. And also in all EU “Four in ten respondents (38%) say the pandemic has also had a negative impact
on women’s income, as well as on their work ‑life balance (44%) and on the amount of time they allocate to
paid work (21%)”.
TELEWORK, p. 9‑28
Minerva – Revista de Estudos Laborais | Ano XII – I da 4.ª Série – N.º 5 (2022) 19
questions that can only be solved by case law and also by collective agreements.
We think that in many of these cases collective bargaining can play a major role
by setting the rules of collective agreements.
However, we also think that the legislator should have been more clear on
this because this article paves the way to several practical problems. It provides
that the teleworking agreement should decide who shall acquire the equip‑
ment and systems necessary for the performance of the work in this regime
and for the interaction between the employee and the employer. Additional
documented expenses incurred by the employee as a result of teleworking
‑which include increased energy and internet costs ‑should be paid by the
employer. These additional expenses may be calculated by comparison with
the employee expenses in the same month of the previous year,to the appli‑
cation of this agreement, and are considered, for tax purposes, as costs of the
employer and not as income of the employee.
The question that immediately arises is what are the “additional expenses
”that can be documented? How can we document them? Simply by compari‑
son with the same month of the previous year? And what if the year in object
was a year of pandemic like 2021 ? Would the costs be the same? It seems to
us that the legislator forgot to consider this scenario .
In many cases applying this comparison can lead to the increase in costs
being residual or null. And there will be cases in which the calculation will be
even more dicult, for example in the case of two or more workers from dif‑
ferent companies, teleworking.
2.4. Employees engaged in telework should have equal access to train‑
ing and continuing professional development and the same opportunities for
promotion and professional advancement.
It is vital, that equal pay and treatment are garanteed, and there should
be no dierence in terms of wages or contracts between those teleworking
and those working physically in the oce, nor prejudice when it comes to
promotion of workers.
This principle of equality between teleworkers and employees is set forth
under article 169, establishing that they have the same rights and duties of
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the other employees with the same category or performing an identical activ‑
ity, including training, career promotion, limits on working time, rest periods,
paid leave, health and safety protection at work, compensation for accidents
at work and occupational illnesses, and access to information from workers’
representative structures.
2.5. We shall also not forget that freedom of association and collective
bargaining rights are fundamental and must be guaranteed also in a remote
work setting – including employers putting all tools at the trade unions’
disposal to be able to organise and communicate with workers also in this
working mode.
Bearing this in mind , article 465, no. 2, recognises the right to the workers’
representative structures to post, in a place made available on the company’s
internal portal, notices, communications, information or other texts relating
to trade union life and to the socio ‑professional interests of workers, as well
as proceed to circulate them via an electronic mailing list to all employees in
teleworking regime
8
9
.
2.6. Very welcomed, at least in our view, is one of the biggest changes
introduced by the law and related to the right to privacy, especially if telework
is performed from home
10
. Besides , because it is performed mainly via ICTs,
telework brings new challenges in terms of data protection. Remote working
may imply the use of monitoring and tracking systems which breach the
employee’s privacy and liberty. The use of surveillance tools to monitor remote
8
This is very important because as noted by the European Economic and Social Committee, Challenges
of teleworking: organisation of working time, work ‑life balance and the right to disconnect, 2021, p. 10, “the
EESC takes the view that the concept of equal treatment among comparable workers in the same company
applies to conditions for health and safety at work, to organising work in such a way as to ensure that the
workload is comparable and to the right for trade unions/workers’ representatives to access the place where
telework is carried out within the limits set by national laws and collective bargaining agreements”.
9
This is also pointed out in the European Social Partners Framework Agreement on Digitalisation “Providing
workers representatives with facilities and (digital) tools, e.g. digital notice boards, to fulfil their duties in a
digital era”.
10
Like the European Economic and Social Committee, Challenges of teleworking…, cit., p. 4, pointed out
“The EESC believes that the methods of monitoring and recording working time should be strictly geared
to this objective. They should be known to workers, be non ‑intrusive and avoid breaching workers’ privacy,
while taking into account the applicable data protection principles”.
TELEWORK, p. 9‑28
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workers and store their data can create excessive control. This is the reason why
article 170 is so important. It establishes the right to privacy and, specically,
it forbids the capture and use of images, sound, writing and the computers’
history. Also, it strenghtens the principle of transparency and proportionality
by clarifying that covert surveillance is totally forbidden. It also establishes
under article 169 ‑A, nos. 4 and 5, and under article 169 ‑B, no 1, al. a), that work
must be controlled by means of communication and information equipment
and systems dedicated to employees’ activity, following procedures that the
employee is aware of and that are compatible with the respect for privacy.
And, yet, even complying with the principle of transparency, not all forms
of control are allowed because it is fundamental to assess its proportionality.
Now therefore, what set forth under Article 169 ‑A, no. 5, where it is “for‑
bidden to impose a permanent connection, during working hours, by means
of image or sound” is totally acceptable
Telework shall not end up being an invasion of the employee’s privacy.
Thus, it shall be veried that the place where telework is performed does not
undergo a degree of control greater than necessary.
The question that may arise is how to control the employee, who is in a
telework regime, since we are dealing with a subordinate employment contract
and the employer has the power to control how the activity is being provided.
However, in this modality, as in others, the question is not related to the exist‑
ence or non ‑existence of this power, that is essential, but to the establishment
of limits to its exercise. Also considering that ,the employer may control, inter
alia, by setting goals and objectives to be met by the employee and reported
daily through e ‑mails, calls, as well as scheduling meetings via teleconference
to monitor the work. These are also ways to avoid social isolation that is one of
the great disadvantages associated with this type of telework, always respect‑
ing the limits enshrined in art. 169 ‑A, no. 5.
This seems precisely the meaning that shall be given to the provisions of
Article 169 ‑ A, paragraph 4, when it states that “The powers of direction and
control of the provision of work at telework are exercised preferably by means
of the equipment and communication and information systems allocated
to the activity of the worker, according to procedures previously known by
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him and compatible with respect for his privacy”. Here it seems to us that the
legislator decided to enshrine the possibility of controlling the professional
performance of the teleworker through the work instrument itself because,
given the characteristics of this type of work, it is often the only way to do
so. However, it sets limits that seem correct to us: respect for privacy and
transparency.
The wording of this article allows for a remote control of the employee’s
performance through the work instruments themselves, insofar as there is
no other possibility of control and subordinated to the requirements that are
provided by this article.
Precisely concerning this power of control and the obligation of its
transparency, the provision under article 169 ‑ B, no. 1, paragraph a) expressly
sets forth the duty of the employer to inform the employee, whenever neces‑
sary, about the characteristics and the way how to use all devices, programs
and systems adopted to remotely monitor his/her activity. This article is very
interesting, both because it underlines, once again, the importance of compli‑
ance with the duty of transparency and the prohibition of covert control, and
because this duty is understood in a broad sense, as it covers all information on
the devices used, including their characteristics and the way they are used. It is
a duty of the employers and a right of the employees to receive this informa‑
tion, and, if violated, it constitutes a serious administrative oence, under the
terms of paragraph 4 of this article.
It is also established under article 170 that any visit of the employer to the
telework location, requires at least 24 hours notice , as well as to receive the
agreement of the employee.
In the new wording of this article, the legislator consecrated in the rst
place the obligation of prior notice for the visit, which will have to be of
24 hours, as well as the reference to the working hours. This clarication is
deemed positive by us, especially because it was one of the aspects that was
still lacking under the previous regime.
The visit shall also be subject to the agreement of the employee.
However, although we totally understand this need for an agreement, given
the very personal nature of the place where the work is carried out, we have
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Minerva – Revista de Estudos Laborais | Ano XII – I da 4.ª Série – N.º 5 (2022) 23
some doubts as to the necessity of such agreement. And even more doubtful
is concerning the need for an agreement, what could the employer do in case
of refusal by the employee. He/she cannot sanction this latter ,because this is
a right he/she enjoys under the terms of Article 170, no. 2, nal part. Can he/
she be held liable for the misuse of work equipment? We cannot fail to notice
the dierence in the wording of this article compared to Article 170 ‑A, no. 4,
concerning the visit of professionals designated by the employer for the evalu‑
ation and control of safety and health conditions at work, which states that
“The employee gives access to the place where he carries out his work”. Here it
seems to us that the employee, despite still having a certain freedom, should
allow access: the option given by the legislator is here quite clear, which is also
understandable considering the duties on matters of safety and health at work
to which the employer and even the employee are bound.
The compliance with these rules should be inspected by the Authority
for Working Conditions, whose visits to the home of the employees should be
communicated at least 48 hours in advance and authorised by it, according to
article 171.
2.7. One of the major disadvantages of teleworking from home is the
risk of isolation, for this reason the amendment introduced under article
169– B, no. 1, al. c), requires the arrangement of face ‑to ‑face contacts with the
employees and it is the employer’s duty to ensure this , based on the frequency
convened in the agreement, which cannot exceed two months.
Article 169 ‑ A, no. 1 and 2, provides for the obligation of the employee to
attend, even with 24 hours’ notice, by heading to the company or other des‑
ignated location for meetings, training sessions and other situations requiring
physical presence.
2.8. Another controversial issue is the notion of accident at work and
there was an amendment also in article 8, no. 2, al. c), of Law 98/2009, estab‑
lishing that in the case of teleworking or distance working, the place of work
is considered to be the one specied in the telework agreement and the one
where the employee usually carries out the activity. And the working time is
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considered to be all the hours when he/she is performing his/her work for the
employer.
However, again, there are some very dicult questions – e.g. if the
employee goes away for a few days to work in another place, or if he/she has
two homes–, there can be some problems in determining the workplace that
can only be solved on a case ‑by ‑case basis, according with the circumstances
of the case. But if the employer is unaware of this situation, can it be considered
an accident at work? Our idea is that the employees should promptly warn the
employee about this change.
2.9. Another very sensitive point is the right to disconnect.aConicting
views exist as of the introduction of a right to disconnect in European Member
States.
At European level, the Framework Agreement on Digitalisation signed
in June 2020, includes, inter alia, the arrangements for exercising the right to
disconnect, the compliance with the working time arrangements in the legisla‑
tion and collective agreements, as well as other contractual arrangements, and
it makes sure the worker is not required to be reachable by their employer
outside working hours.
In Portugal, we think that a very important article, directly related to this,
is article 199.º ‑ A, that establishes the duty to “refrain from contact” by the
employer in all cases and not only in the telework contract. This duty goes
beyond the right to disconnect, because it imposes over employers the duty to
avoid disturbing the employees during their rest period, outside their normal
working hours . It has also been dened as discriminatory any unfavourable
treatment– namely in terms of working conditions or career progress– reserved
to an employee exercising this right.
This means that employers should not contact the employee outside
working hours, except for reasons of “force majeure”. We shall admit that this
article has a major relevance but, again, it raises a few issues. . One of these
issues concerns what “force majeure” is, because it isn’t dened under the law.
Based on the classical denition of Civil Law, it isan unforeseen and urgent
situation, such as res, accidents, or similar circumstances . But we believe
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Minerva – Revista de Estudos Laborais | Ano XII – I da 4.ª Série – N.º 5 (2022) 25
that “force majeure”, a classic undetermined concept, should be interpreted
here with some exibility, in order to cover, perhaps, situations such as those
provided for under Labour Code, in paragraph 2 of the art. 227, regarding
overtime work. Not only traditional cases of force majeure or fortuitous events
(re, earthquake, ood, etc.), but all those that cannot be postponed, in which
immediate contact proves to be “essential to prevent or repair serious damage
to the company or its viability”.
Another aspect that the new law also fails to clarify is how this duty to
refrain from contact will apply to professionals who are not subjected to any
working schedule constraint or others who, by nature of their job, work with
teams operating in dierent time zones.
Of course, “The devil is always in the details ... but also in the implementa‑
tion”. But, in the end, although some controversial issues are still open, the
conclusion that we draw from this article is a very positive one, being it a
big step in the recognition of a real “right to disconnect” and in a modality
that really allows it. Indeed, this article can only exist, if the burden is on the
employer’s side and not on the employee’s side.
Conclusion
We think that this new legislation provided Portugal with a better legal
framework in relation to telework and, specically, as for the organisation of
working time, the risks to health and safety at work, work ‑life balance, the right
to disconnect and the eectiveness of labour rights when teleworking.
We also recognise that further eort is needed, specically concerning
some points that we already highlighted, and that, in some cases, it is going to
be the jurisprudence in a case ‑by ‑case analysis to make the way.
However, we also think that the participation and involvement of the
social partners at all levels, including through collective bargaining, can prob‑
ably represent the key to nding balanced, decent and fair solutions.
Social partners can play a signicant role in advancing teleworking in
a way that contributes to gender equality, promotion of well ‑being at work
and productivity, e.g., through collective bargaining. In some cases, bearing
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26 Minerva – Revista de Estudos Laborais | Ano XII – I da 4.ª Série – N.º 5 (2022)
in mind the wide variety of workplaces, the best results can be achieved with
measures tailored at enterprise and workplace level.
O WHISTLEBLOWING NO DIREITO DO
TRABALHO PORTUGUÊS
ALGUMAS REFLEXÕES ADICIONAIS
Paulo Sousa Pinheiro
Professor Auxiliar da Faculdade de Direito da Universidade Lusíada ‑ Porto
Investigador Integrado do CEJEA
https://doi.org/10.34628/k3k0‑hg86
27