It is known to the general public that Law No. 7/15, of June 15, which approved the previous General Labor Law (hereinafter referred to as “ALGT”) and Rectification No. 15/15, of 2 of October, which were in force for almost a decade, were repealed by the new General Labor Law, approved by Law no. 12/23, of December 27th, which came into force on March 27th of this year (hereinafter referred to as “NLGT”).
The NLGT caused some doubts regarding interpretation and application to Employers and Workers, with special relevance to the validity of Employment Contracts signed before they came into effect and the need for them to be amended or, alternatively, new Contracts to be signed so that are in compliance with it.
Pursuant to article 319 of the NLGT, Employment Contracts concluded under the ALGT are in force under the ALGT until the date scheduled for their expiry. However, if at its expiry date, the parties intend to renew it, the Contract will be considered renewed under the terms of the NLGT.
Therefore, previously signed Contracts remain valid and do not need to be amended, at least until the date of their expiry or renewal. However, if renewed, all its terms and conditions must be in accordance with the NLGT, under penalty of clauses that may be in contradiction with it being considered illegal and, therefore, void.
Without prejudice, it is important to mention that all rights acquired by the worker under the Contract and previous law remain valid, regardless of the renewal of the Contract under the terms of the NLGT, and the Employer cannot consider them lost based on the lack of legal basis (ie not provided for in the NLGT).
It should be noted that the transitional issue regarding the application of the NLGT in time only applies to Employment Contracts for a Fixed Time. But why?
Making use of legal hermeneutics, through the rational or logical element, we can say that the legislator's reason for establishing such a rule only for Employment Contracts concluded for a Determined Time, is due to the nature of Contracts celebrated for an Indefinite Time which, by not have a time limit on validity, they automatically come into force under the terms of the NLGT.
Let us see that, in Fixed-Term Employment Contracts, only when they are renewed for the first time after the entry into force of the NLGT, do they become subject to it. Thus, renewal is a sine qua non condition for the application of the NLGT to previously concluded Fixed-Term Contracts. In this sense, if the application of the NLGT was not automatic for Indefinite Term Employment Contracts, it would never be applied, due to the fact that they are never renewed given their permanent nature.
In these terms, we understand that there is no need to sign new Employment Contracts, or to change contracts signed in light of the ALGT, as they remain valid. We warn, however, that it is always necessary to carry out a careful and detailed analysis in order to ensure that there are no clauses that contradict the NLGT because, if they exist, it will justify the change of previously signed Contracts to adapt to the NLGT, under penalty of nullity of these contradictory provisions – with special attention, in the case of Contracts concluded for a Definite Period, to the existing limitations, considering that the general rule becomes the conclusion and validity of Contracts for an Indefinite Period.
P&P Sociedade de Advogados.
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