Strike rights in Portugal: what the law guarantees

There is a strike coming up and you are not sure whether you can join, what you lose and what your employer can do about it? The short answer: you can join, union member or not, you lose the pay for the period you stop, and nobody can punish or replace you for it. The rules are in Articles 530 to 545 of the Portuguese Labour Code, and the right to strike is written into the Constitution.

Who can call a strike, and who can join one

Rita works in a warehouse and is not a union member. The sector union has called a strike for Friday. Can she join? Yes. Striking is a right of workers, all of them, under the Constitution, and it cannot be waived: you cannot give it up by contract, and your employer cannot take it away (Article 530(1) and (3) of the Labour Code). It is the workers who define the interests they want to defend through the strike (paragraph 2).

What the law reserves for the union is the decision to call the strike (Article 531(1)). There is one exception: in a company where most workers are not represented by unions, the workers' assembly can vote to strike, as long as four conditions are met at the same time: the assembly is called for that purpose by 20 percent of the workers or by 200 workers, the majority of the workforce takes part in the vote, and the decision is approved by secret ballot by the majority of those voting (paragraph 2).

Strikers are represented by the union that called the strike or, in the assembly case, by a strike committee elected by that assembly (Article 532).

What about pickets? They are legal. The union or the strike committee can organise pickets to persuade colleagues to join, by peaceful means. The limit is clear: they must respect the freedom of those who choose to work (Article 533). Persuading is allowed; blocking or intimidating is not.

The strike notice: 5 or 10 working days

A strike cannot happen by surprise. The body calling it must send advance notice to the employer (or the employers' association) and to the ministry responsible for labour at least 5 working days ahead. If the strike hits a company or establishment that meets essential social needs (basic needs of the population that cannot wait), the notice period rises to 10 working days (Article 534(1) of the Labour Code).

Notice can be given by any suitable means, in writing or through the media (paragraph 2). That is why you hear about train strikes on the evening news. In those sensitive sectors, the notice must include a proposal for minimum services and for the services needed to keep equipment and premises safe (paragraph 3).

What happens to your pay and your contract

The core effect is in Article 536: a strike suspends the employment contract of every worker who joins. It suspends pay, the duty to follow orders and the duty of attendance. In plain terms:

João earns 1,100 euros gross per month for a 40 hour week and joined a full day of strike. His hourly rate follows the formula in Article 271 of the Labour Code: (1,100 x 12) divided by (52 x 40) = 6.35 euros per hour. One 8 hour strike day deducts about 50.77 euros from that month's gross pay. [Common interpretation: the law says pay is suspended for the period you join; using the hourly rate from Article 271 is the standard way to calculate the deduction.]

In return, the law protects the essentials (Article 536(2) and (3)):

• All rights, duties and guarantees that do not depend on you actually working remain in place.
• You keep your social security rights and the benefits due for work accidents or occupational illness.
• The strike period counts towards your length of service as if you had worked.

One important note: a strike day is not an absence. An absence is an unauthorised failure to show up; a strike is the exercise of a right that suspends the contract. To see the difference in practice, check the guide to justified and unjustified absences and the guide on which absences cost you pay.

Minimum services: who must work even during a strike

In some sectors, a strike cannot stop everything. In companies that meet essential social needs, the union (or the strike committee) and the striking workers must keep the indispensable minimum services running (Article 537(1) of the Labour Code). The law itself lists the sectors (paragraph 2):

• Postal services and telecommunications
• Medical, hospital and medicine services
• Public sanitation, including funerals
• Energy and mining, including fuel supply
• Water supply
• Firefighting
• Public services that meet essential needs the State is responsible for
• Transport of passengers, animals and perishable food, including ports, airports and stations, with loading and unloading
• Transport and security of cash and valuables

On top of that, every strike must keep the services needed for the safety and maintenance of equipment and premises (paragraph 3), so the plant does not fall apart during the stoppage.

Who defines the minimum services? First, the collective agreement or a deal between workers' representatives and employers (Article 538(1)). If there is no deal within 3 days of the strike notice, the labour minister and the sector minister decide by joint reasoned order, or an arbitration court decides for State owned companies (paragraph 4). The definition must respect the principles of necessity, adequacy and proportionality (paragraph 5): minimum means minimum, not normal operations in disguise.

And who provides them? The strikers' representatives assign the workers up to 24 hours before the strike starts; if they fail to do it, the employer assigns them (paragraph 7). If you are assigned, you stay under the employer's direction strictly to that extent and you are paid for it (Article 537(4)).

What your employer cannot do

Here the law is strict, and for good reason: a strike that could be worked around would not be a right. The main bans:

The replacement of strikers deserves detail, because it is the most tempted workaround. During the strike, the employer cannot have your work done by people who were not working at your establishment on the date of the strike notice, cannot hire workers for that purpose from that date on, and cannot bring in an outside company to do your tasks (Article 535(1) and (2)). The only exception is a failure to provide the minimum services, and only to the extent strictly needed to cover them.

If you see any of these practices, document them and file a complaint. The step by step process is in the guide on how to file a complaint with ACT.

A lock-out is the mirror image of a strike: the total or partial shutdown of the company, blocking access to workplaces or refusing to provide work and tools, by unilateral decision of the employer, for aims outside the company's normal activity (Article 544(1)). It is banned (paragraph 2). Full stop.

Unlawful strikes: the risk of joining outside the rules

Not every stoppage is a protected strike. If a strike is called or carried out against the law, with no advance notice, called by a body with no power to call it, or with minimum services left uncovered, your absence counts as an unjustified absence (Article 541(1) of the Labour Code), with everything that brings: loss of pay, possible disciplinary action and, in extreme cases, dismissal. The consequences of unjustified absences are detailed in this guide.

Two points soften the risk:

• If the breach comes from the union side, for example a strike called against a social peace clause agreed in a collective agreement, you are not held responsible for joining (Article 542(3)).
• If minimum services are not provided, the Government can order civil requisition (compelling workers to provide the service, under specific legislation), but that is a State measure, not an automatic sanction against you (Article 541(3)).

If in doubt about a specific strike, the right sources are the union that called it and the text of the strike notice. The general framework is in the guide to the Portuguese Labour Code.

Are you an employer facing a strike? Four rules to keep a hard day from becoming a criminal case. First: do not hire anyone, or any outside company, to replace strikers, since that is a very serious administrative offence and a crime (Articles 535 and 543). Second: deduct only the period each worker actually joined; anyone on holiday, on sick leave or assigned to minimum services gets paid as normal (Articles 536 and 537(4)). Third: do not promise bonuses to those who stay in or penalise those who walked out, because the act is null and void and sanctionable (Article 540). Fourth: if your company meets essential social needs, negotiate the minimum services within 3 days of the strike notice and, if the strikers' representatives fail to assign workers up to 24 hours before the start, make the assignment yourself (Article 538). The rest of your ongoing duties are in the employer obligations checklist.

This guide is general information and does not replace legal advice for your specific case. Questions? ola@despacho.pt