Posted workers in Portugal: your rights and the 12 month rule

If a company from another country sends you to work temporarily in Portugal, or a Portuguese company sends you to another country, you are a posted worker (Arts. 6 to 8 of the Portuguese Labour Code). You keep your home contract, but the country where you work guarantees you a core set of rights: local minimum wage, paid overtime, working time limits, holidays, safety and equal treatment (Art. 7). After 12 months almost all of the host country's law applies (Art. 3-C of Law 29/2017). And the company must declare the posting to the ACT, the Portuguese labour inspectorate.

What posting is and what it is not

Marta is an engineer at a company in Zaragoza. The company won a contract to install a packaging line at a factory in Aveiro and sends Marta to Portugal for 5 months. Marta's contract stays Spanish, her salary is still paid by the Spanish company, but the work is done in Portugal. This is posting.

Art. 6(1) of the Labour Code lists 3 situations. In all of them the worker is hired by an employer established in another State and works in Portugal:

The condition shared by all three: the employment contract with the home employer must continue during the posting (paragraph 2). If the Spanish company dismissed Marta and the Aveiro factory hired her, it would no longer be posting: it would be a normal Portuguese contract, with the rules for foreign workers if she were from outside the EU.

What is not posting:

• Temporary agency work entirely inside Portugal (a Portuguese agency supplies a Portuguese user). It has its own rules: temporary agency work.
• Occasional secondment between Portuguese companies: occasional secondment.
• Merchant navy crew, excluded by Art. 6(3).
• A short business trip with no service provided to a third party (a meeting, a trade fair). [Common interpretation:] the law speaks of "performing the activity" in the territory; attending a meeting is not carrying out a service contract.

The ACT checks whether the posting is genuine using the criteria of Art. 4 of Law 29/2017: the work is for a limited period, the worker does not normally work in Portugal, the worker returns home at the end, the company pays or reimburses travel, meals and housing, and the home company has real activity in its country (head office, offices, taxes, recruitment, turnover). A "letterbox" company created only to post workers more cheaply is a fake posting: in that case the worker can never be left with worse conditions than a genuine posted worker (Art. 4(4)).

The rights Portugal guarantees to posted workers

Marta's contract is Spanish and says 38 hours per week and 23 days of holiday. She arrives in Aveiro and the site manager asks her for 50 hours a week "because that is how it is in Spain". It is not. While she works in Portugal, Marta has the core of Portuguese conditions in Art. 7(1) of the Labour Code, whenever they are better than her contract:

• Job security (a).
• Maximum working time and minimum rest periods (b and c): 8 hours per day and 40 per week, 11 consecutive hours of rest between days, 1 rest day per week. See working hours in Portugal.
• Holidays (d): 22 working days per year.
• Minimum pay and overtime pay (e): at least 920 euros per month in 2026, or the minimum of the generally binding collective agreement for the sector if higher; overtime paid with the Portuguese premiums. See overtime pay.
• Supply by temporary work agencies and occasional secondment (f and g): the Portuguese rules on who may supply workers and to whom.
• Health and safety at work (h).
• Protection of parenthood (i) and of minors at work (j).
• Equal treatment and non discrimination (l).

Law 29/2017 adds two things (Art. 3-A): housing conditions, when the company provides the housing, and allowances or reimbursements for travel, meals and accommodation for workers who have to travel to and from the workplace of the posting. All on equal terms with what Portuguese law and collective agreements provide. Failing is a serious offence.

Two rules about what is not in the core:

1. Whatever is not on the list is still governed by the home contract: dismissal procedure, probation period, supplementary pension. Until 12 months (see below).
2. Initial assembly exception: if the company supplies a machine and sends a qualified technician to do the initial assembly or installation included in the supply contract, and it lasts no more than 8 days in a year, Portuguese holidays, minimum pay and overtime do not apply (Art. 7(2)(b)). This exception does not cover construction: building, excavation, assembly of prefabricated elements, painting, cleaning, demolition (paragraph 3).

If Marta's company is a temporary work agency, the protection is stronger: she gets all the conditions an agency worker supplied by a Portuguese agency would get, including the pay the user company applies to the same job (Art. 3-B). The user company in Portugal must inform the agency of those conditions.

Pay, posting allowance and expenses: what counts and what does not

Tomasz is an electrician from a Polish company posted for 6 months to a building site in Faro. He gets 700 euros of "base pay" plus 400 euros of "posting allowance", and the company pays for his room in a guesthouse. Is he above the 920 euros?

The answer is in Art. 7(2)(a) of the Labour Code: minimum pay includes allowances paid because of the posting that are not reimbursements of expenses for travel, housing and meals. In other words:

In Tomasz's case the 400 euro allowance counts. 700 plus 400 is 1,100 euros, above the 920. The paid room does not enter the calculation, neither up nor down. If the generally binding collective agreement for construction sets a higher minimum for electricians, that is the amount the Polish company must guarantee.

Watch out for the reverse trap: if Tomasz's payslip only said "1,100 euros posting" without separating anything, the law presumes the allowances are expense reimbursements (Art. 4(1)(i) of Law 29/2017). Result: the company has to prove the minimum wage is guaranteed on top. That is why Art. 9 requires itemised payslips, including allowances and reimbursements.

And housing cannot be overcharged or deducted in a way that leaves pay below the minimum: the employer is liable for refunding amounts withheld or deducted to pay for housing (Art. 11(4)(c)).

The 12 month rule: when a posted worker gets all of Portuguese law

The German manager who came to the Lisbon branch "for 8 months" has now been there for 14. What changes?

Up to 12 months of effective duration, the posted worker has the core of Art. 7 and Art. 3-A. From the day the posting passes 12 months, the worker is entitled to all working conditions set by Portuguese law and generally binding collective agreements (Art. 3-C(1) of Law 29/2017), whatever law governs the contract. Only these are left out (paragraph 2):

• the procedures, formalities and conditions for concluding and terminating the contract, including non compete clauses;
• supplementary occupational pension schemes.

In practice: Portuguese holiday and Christmas allowances, the absence rules, leave, rules on changing duties, everything the Labour Code gives a worker hired in Portugal. See what that includes in the Portuguese Labour Code explained.

Three details:

1. 18 months instead of 12: the company can delay the moment with a reasoned notice to the ACT stating why the posting is extended (paragraph 3). If the posting was planned for less than 12 months, the notice must be filed 30 days before that period ends (paragraph 4).
2. Replacement does not restart the clock: if the German manager is replaced by a colleague on the same task at the same place, the duration is the sum of both periods (paragraph 5). Rotating workers every 11 months does not avoid the rule.
3. It also applies to workers leaving Portugal: a worker of a Portuguese company posted to another Member State has the same rights after 12 months, if the host law is not more favourable (paragraph 6).

Breaching paragraphs 1 and 6 is a serious offence (paragraph 7).

What the company must do: ACT declaration, documents and contact person

Marta's Spanish company asks what it has to do before she arrives in Aveiro. The list is in Art. 9 of Law 29/2017 and also applies to companies from outside the EU (paragraph 5):

1. Declaration to the ACT before the service starts, on the electronic form of the ACT portal, with: identity of the service provider, number and identity of the workers, liaison person, expected duration and start and end dates, address of the workplaces and nature of the service (paragraph 1(a)).
2. Keep copies, on paper or digital, throughout the posting and in an accessible place in Portugal (the workplace, the construction site or the vehicle): the employment contract or a document with the essential information, itemised payslips, working time records with daily start, end and duration, and proof of payment (paragraph 1(b) and paragraph 4).
3. Produce those documents up to 1 year after the end of the posting if the ACT asks (paragraph 1(c)), in Portuguese or with a certified translation (paragraph 3).
4. Appoint a liaison person with the ACT and, where relevant, with trade unions for collective bargaining (paragraph 1(d)).

Missing the declaration, the translation or the record keeping is a serious offence; filing the declaration outside the official form is a minor offence (paragraph 6). Fines follow the table in Art. 554 of the Labour Code, based on the company's turnover.

In the opposite direction, the Portuguese company that posts Rui, a welder from Braga, to a shipyard in France must notify the ACT 5 days in advance: identity of the workers, user, workplace and expected start and end (Art. 8(2) of the Labour Code). Serious offence if it fails (paragraph 3). Rui keeps his Portuguese contract and takes with him, at a minimum, the rights of Art. 7, and gains those of the host country if they are better (Art. 8(1)): if the French minimum wage is higher than the Portuguese one, that is what he receives.

Then there is Social Security: a worker posted within the EU, the EEA or Switzerland keeps paying contributions in the home country during a posting of up to 24 months, with the portable A1 document requested by the company from the home country's Social Security. Beyond 24 months an exception agreement is needed. The Portuguese instructions are on the Social Security page on posting (link in the sources).

If something goes wrong: complaint, court and who pays

Tomasz finished his 6 months in Faro, went back to Poland and the company left two months unpaid. He is far away, the contract is over. Does he have any remedy in Portugal?

He does. Art. 11 of Law 29/2017 gives a worker posted to Portugal two routes, even after the employment relationship has ended:

• Complaint to the ACT against the employer (paragraph 1(a)). See how to file a complaint with the ACT.
• Court action for the damage caused by the breach (paragraph 1(b)).

A trade union or association with a legitimate interest can act on the worker's behalf with their express authorisation (paragraph 2). And whoever complains is protected against retaliation under Arts. 24 and 25 of the Labour Code (paragraph 3).

The home employer remains liable, even after the worker has returned home, for (paragraph 4): unpaid net wages, taxes or contributions wrongly withheld, amounts deducted to pay for housing and dues withheld for common funds.

And there is a second pocket: the Portuguese client who bought the service is jointly liable, under Art. 551(4) of the Labour Code, for the unpaid minimum pay (legal, collective agreement or contract) that the direct subcontractor owes the posted worker (Art. 12). Limit: the rights earned during the contract between the two (paragraph 2). For Tomasz, this means the Portuguese builder that owns the Faro site may have to pay the missing 920 euros per month, if the Polish company was its direct subcontractor.

Before court, demand in writing. Send a formal demand letter to the home company and, if it does not pay, file a complaint with the ACT for unpaid wages. See late wages in Portugal.

The ACT runs inspections based on risk assessment: large infrastructure projects, long subcontracting chains, sectors with a history of breaches and vulnerable groups (Art. 10). Fines imposed on foreign companies are collected in the home country through cooperation between authorities (Arts. 13 to 20), so "going home" does not erase the debt.

Checklist: what to do, in order

If you are posted to Portugal:

1. Ask for an itemised payslip: base pay, posting allowance and reimbursements on separate lines. If it is all lumped together, the law presumes it is reimbursement and the minimum must be guaranteed separately.
2. Check the 920 euros (or the sector's collective agreement minimum) counting base pay and posting allowance, not counting housing and travel.
3. Apply the Portuguese limits: 8 hours per day, 40 per week, paid overtime, 11 hours of rest between days, 22 working days of holiday per year.
4. Count the months: after 12 effective months (18 if the company notified the ACT), you get all of Portuguese law. Colleagues replacing you on the same task add up.
5. Ask who the liaison person with the ACT is and whether the posting declaration was filed. Without it, the company is committing a serious offence, and that helps you in a complaint.
6. If you are not paid: written demand, complaint to the ACT, and remember that the Portuguese client is liable for the unpaid minimum. You can act even after returning to your country.

If you are posted from Portugal to another country:

1. Check the notice to the ACT 5 days before (Art. 8(2)) and the portable A1 document from Social Security so you do not pay contributions twice.
2. Compare: you take the Portuguese rights of Art. 7 with you and gain the local ones if they are better (minimum wage, hours, holidays).
3. Housing, travel and meals follow the host country's equal treatment rules.

For the employer: posting workers to Portugal without a prior declaration to the ACT, without documents kept in Portugal or without a liaison person is a serious offence (Art. 9 of Law 29/2017), with a fine calculated under Art. 554 of the Labour Code. Itemise on the payslips what is pay and what is reimbursement: otherwise it is presumed to be reimbursement and you have no proof that you guaranteed the 920 euros or the collective agreement minimum. If the posting is approaching 12 months and there are reasons to extend it, notify the ACT at least 30 days in advance to gain up to 18 months; without notice, from the 13th month all of Portuguese law applies, including holiday and Christmas allowances. If you are the client hiring a foreign company, ask to see the ACT declaration and the payslips: you are jointly liable for the unpaid minimum pay of your direct subcontractor (Art. 12). And if you post your own workers abroad, notify the ACT 5 days before and request the A1 from Social Security before departure.

For long postings, several countries or tax questions, a lawyer or your accountant can help. But the core above does not depend on that: it applies from the first day of work in Portugal.