Fixed-term contracts and principle of equal treatment in Portugal
| Autor | Catarina de Oliveira Carvalho - Luísa Andias Gonçalves |
| Cargo | Universidade Católica Portuguesa, CEID-CRCFL ? Católica Research Centre for the Future of Law, Faculdade de Direito ? Escola do Porto - STM, RCJS, Polytechnic Institute of Leiria |
| Páginas | 51-62 |
IusLabor 1/2017
48
FIXED-TERM CONTRACTS AND PRINCIPLE OF EQUAL TREATMENT IN
PORTUGAL
Catarina de Oliveira Carvalho
Universidade Católica Portuguesa, CEID-CRCFL – Católica Research Centre for the
Future of Law, Faculdade de Direito – Escola do Porto
Luísa Andias Gonçalves
STM, RCJS, Polytechnic Institute of Leiria
Introduction
Portuguese Constitution establishes the principle of stability of employment (article 53
of the Portuguese Constitution59). This principle covers several aspects, including the one
according to which the employment shall be for an indefinite period. In this context,
fixed-term contracts, although admitted in Portuguese legal system, are an exception to
the rule. Therefore, as we shall see, the Portuguese Labor Code60 makes the admissibility
of fixed-term contracts dependent on the existence of a motive that objectively justifies
it. Indeed, employment stability must be reconciled with other relevant interests, such as
the temporary needs of employees and the promotion of employment. In these cases, the
law admits the exception to the rule, legitimizing the fixed-term contracts.
The principle of stability of employment also implies that fixed-term contracts, even in
the situations in which they are admitted, can not be of an unlimited duration or renewed
unlimitedly, which was also a concern of the Portuguese lawmaker when regulating this
matter.
Although the fixed-term contract allows the worker to occupy a job, this modality of
contracting is associated with a major drawback – job insecurity. However, companies
often find in this disadvantage of the worker a great advantage for them – the fact that
they can expeditiously and in a simple way promote the extinction of employment
contracts. For them, the temptation is to hire workers under fixed-term contracts in order
to avoid the application of the rules regarding open-ended contracts. The legislator also
worked hard to fight this reality.
In Portugal, in 2016, out of a total of 3787.2 thousand employees, 705.4 thousand were
fixed-term workers, with 353.4 thousand men and 352.1 thousand women. This means
59 http://www.en.parlamento.pt/Legislation/CRP/Constitution7th.pdf.
60http://www.pgdlisboa.pt/leis/lei_mostra_articulado.php?artigo_id=1047A0144&nid=1047&tabela=leis
&pagina=1&ficha=1&so_miolo=&nversao=#artigo
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