Union representative in Portugal: rights and protection

A union representative (in Portuguese, delegado sindical) is a worker of the company elected by colleagues who belong to the same union to carry out union activity inside the company (Art. 442(1)(f) Labour Code). They get 5 paid hours a month, can call meetings at the workplace, post information, receive mandatory information from the company and have extra protection against dismissal and transfer. This guide explains who can be a representative, how many there can be, what the company has to provide and what happens if it does not.

What a union representative is, and what it is not

Ana works in a call centre in Braga with 320 workers. 120 of them belong to the same union. In February the company announced it would replace the performance review with an algorithm that measures call times, and nobody explained the criteria. Ana wants the union inside the company asking questions. For that, the 120 members elect union representatives.

Union freedom is in the Constitution (Arts. 55 and 56) and the Labour Code defines the pieces (Art. 442(1)):

The union representative is not the works council. The two can coexist, and often do:

One detail that changes everything: the rights to meetings at the workplace, premises and posting of information (Arts. 461, 464 and 465) apply even in companies where no worker belongs to a union, with the necessary adaptations (Art. 460(2)). You do not need a union in the company for colleagues to be able to meet there.

How a representative is elected and how many there can be

The election does not follow a procedure in the Labour Code. It follows the union's statutes, but with two fixed rules (Art. 462):

1. Direct and secret ballot of the members (para. 1).
2. Term of up to 4 years (para. 2).

After the election, the union's board notifies the employer in writing of the identity of each representative and of those who sit on a union or inter union committee, and posts that notice in the places reserved for union information (para. 4). The same happens when a representative is removed or leaves office (para. 5). This notice matters: it is from that moment that the company knows who has time credit and protection.

How many protected representatives (Art. 463). The union may elect as many representatives as it wants, but the number that benefits from the time credit and the protection of the Code has a cap, calculated on the workers who belong to that union:

In Ana's company, with 120 members, that is 3 representatives. In a company with 900 union members: 6 + (400 : 200) = 8. With 1,050: 6 + (550 : 200) = 6 + 2.75, rounded up to 9 (para. 3).

The count is done per union. [Common interpretation:] if two unions are present in the same company, each has its own cap of protected representatives, calculated on its own members; the law always speaks of "unionised workers" and the election follows each union's statutes.

What the union representative can do: 5 concrete rights

The 3 representatives in Ana's company were notified to the employer in March. They now have five tools.

1. Credit of 5 paid hours a month (Art. 467)

Each representative has 5 hours a month for the role, or 8 hours if they sit on an inter union committee (para. 1). Not granting the credit is a serious offence (para. 2).

These hours follow the common rules of Art. 408:

• they count as effective service, including for pay (para. 2). Ana earns 1,100 euros gross for 40 hours a week; the 5 hours she spends as a representative are paid as if she were on the phone;
• the representative notifies the company in writing 2 days ahead, unless there is a valid reason (para. 3);
• someone who belongs to more than one structure (for example, union representative and works council member) does not accumulate credits (para. 4).

If the 5 hours are not enough, the representative can be absent for longer: absence for necessary and urgent acts of the role is justified and counts as service, but without pay (Art. 409(1) and (2)). They notify in writing the dates and number of days 1 day ahead, or within 48 hours after the first day if it could not be foreseen; otherwise the absence becomes unjustified (paras. 3 and 4).

2. Workers' meetings at the workplace (Art. 461)

Workers may meet inside the company when the meeting is called by one third or 50 workers of the establishment, or by the union or inter union committee (para. 1). In companies with fewer than 50 union members, the union representative may call it (para. 3). Two regimes:

• outside the working hours of most workers: no limit, without disturbing shifts and overtime (para. a);
• during working hours: up to 15 hours a year, which count as effective service (paid), as long as urgent and essential services keep running (para. b).

The procedure is the one for works councils (para. 2, which refers to Art. 420): notice to the employer 48 hours ahead with date, time, expected number of participants and place; posting of the notice; if during working hours, a proposal to keep essential services running; and the employer must provide a suitable place inside the company or nearby.

Union officers who do not work in the company may attend the meeting, as long as the organisers notify the employer 6 hours ahead (para. 4). Banning the meeting or blocking the officer's entry is a very serious offence (para. 5).

In Ana's call centre, the union committee calls a 1 hour meeting during working hours to explain the new review algorithm. It notifies the company 48 hours ahead, proposes that half the teams stay on the line, and asks for the training room. The company cannot say no.

3. Premises and posting of information (Arts. 464 and 465)

The employer provides representatives who ask for it with a suitable place for the role, inside the company or nearby. In a company or establishment with 150 or more workers, that place is provided on a permanent basis (Art. 464(1)). Serious offence if missing.

The representative may post notices, communications and union information in a dedicated place provided by the company, and distribute it, without disturbing normal operations (Art. 465(1)). Since 2021, this right extends to the company's internal portal and to an email list for all workers in remote work, a list the employer has to provide (para. 2). Serious offence (para. 3).

4. Information and consultation (Art. 466)

The representative has the right to information and consultation on four matters (para. 1), plus any others added by law or collective agreement:

• the recent and likely evolution of the activity of the company or establishment and its economic situation;
• the situation, structure and evolution of employment, and preventive measures when a reduction in the number of workers is expected;
• any decision likely to cause a substantial change in work organisation or in contracts;
• the parameters, criteria, rules and instructions of the algorithms or AI systems that affect access to and keeping the job and working conditions, including profiling and monitoring (para. d, Law 13/2023). See AI and algorithms at work.

This is exactly Ana's case: the algorithm that measures call times is para. d. The representatives ask in writing for the criteria, and the company answers in writing within 8 days, or 15 if the complexity justifies it (para. 2, referring to Art. 427(1) and (2)). If the company asks the representatives for an opinion, they have 10 days to give it; if they do not, the consultation is deemed done (Art. 427(4) to (6)). Not informing is a serious offence (para. 4).

Important limit: this right does not apply to micro or small companies (para. 3), that is, companies with fewer than 50 workers (Art. 100). In a company of 40 people, the representative has time credit, meetings and posting, but cannot demand this information under this article.

The company may mark information as confidential or refuse information that would seriously harm its operation, but it must justify in writing with objective criteria (Arts. 412(3) and 413(1)); the refusal can be challenged in court (Art. 413(2)). A representative who receives confidential information may not disclose it, even after the term (Art. 412(1) and (2)).

5. Role in other processes

There are rights scattered across other articles of the Code and other guides. The most frequent: in a disciplinary procedure, if the worker targeted is a union representative, the company sends a copy of the notice of misconduct to the union on the same day, and the union may add an opinion within 5 working days (Arts. 353(2) and 356(5)); in collective redundancy and lay-off, the inter union committee or the union committees receive the notices and take part in the information and negotiation phase when there is no works council (Art. 360(3)); and the union has the right to take part in restructuring processes, especially in training actions or when working conditions change (Art. 443(2)).

Union dues: who pays, how much and how they are deducted

Rui, Ana's colleague, joined the union. The dues are 1 percent of base salary. What changes on the payslip?

Three rules protect Rui (Art. 457):

1. Nobody is forced to pay dues to a union they have not joined (para. 1).
2. The deduction by the employer cannot be used to discriminate, charge costs not provided by law or limit freedom to work (para. 2).
3. The company may only process union membership data electronically to collect and deliver dues (para. 3).

For the company to deduct the dues from the salary (Art. 458):

• either the applicable collective agreement provides for it and Rui authorises it, or Rui makes an express request to the company, even without an agreement (para. 1);
• the declaration is written and signed, states the amount or the percentage of pay to deduct and the union it goes to (para. 2). Rui sends a copy to the union (para. 6);
• it takes effect from the month after it is handed in (para. 7);
• the company deducts the dues on the payslip and delivers them to the union by the 15th of the following month (para. 3). With 1,100 euros of base pay, Rui sees a line of 11 euros on his payslip;
• Rui can stop the deduction whenever he wants, with a new written and signed declaration, effective the following month (paras. 5 and 7).

If the company refuses or fails to make the deduction Rui authorised, it is a very serious offence (para. 8). If it deducts and keeps the money instead of delivering it to the union, it is the crime of breach of trust (Art. 459).

Leaving the union is free at any time, with 30 days written notice (Art. 444(6)). And you cannot belong to two unions for the same profession (para. 5).

Union board members: 4 days a month

If Ana is elected to the union's board (governing bodies), the regime is more generous (Art. 468):

• credit of 4 working days a month and unlimited justified absences for the role (para. 1). Very serious offence if the company does not comply (para. 9);
• this regime only applies to a maximum number of board members per company, counted by union members (para. 2): 1 with fewer than 50, 2 from 50 to 99, 3 from 100 to 199, 4 from 200 to 499, 6 from 500 to 999, 7 from 1,000 to 1,999, 8 from 2,000 to 4,999, 10 from 5,000 to 9,999 and 12 from 10,000. In Ana's company, with 120 members, that is 3 board members;
• board members above that number get 33 justified absences a year (para. 5);
• the union's board notifies the employer by 15 January each year, and within 15 days of any change, of which board members are covered (para. 6), and may redistribute the credit among members with 15 days notice (para. 7);
• someone on the board of more than one union does not accumulate credits (para. 4);
• if absences last more than one month, the suspension of the contract for a reason relating to the worker applies, unless the collective agreement provides for full time union duties with pay (para. 8).

Protection: dismissal, transfer and retaliation

In April the company sends Ana to the Guimaraes branch "for reorganisation". In May it opens a disciplinary procedure against her for "misuse of email" after she sent the notice of a meeting. Can it?

The Code gives union representatives the same protection as the other representation structures (Arts. 404 to 414), and Art. 463 confirms that representatives "benefit from the protection regime provided in this Code".

1. Making the job conditional on joining (or not joining) a union, and dismissing, transferring or harming someone because of union activity is prohibited and void (Art. 406(1)). Serious offence. The company risks a fine of up to 120 days and the director, manager or supervisor responsible risks up to 1 year in prison (Art. 407(1) and (2)). The company also cannot fund or interfere in the organisation of the union or the union section (Art. 405(2)).
2. Transfer only with Ana's consent, unless the establishment closes or moves (Art. 411(1)). The company notifies the union of the transfer with the same notice it gives Ana (para. 2). The order to go to Guimaraes is not valid without her yes.
3. Preventive suspension during the disciplinary procedure does not stop Ana from entering the premises and exercising her role as representative (Art. 410(1)).
4. If she is dismissed, the injunction to suspend the dismissal is refused only if the court sees a serious likelihood of just cause (Art. 410(4)), the case is urgent (para. 5) and, if the dismissal is unlawful, Ana chooses between reinstatement and compensation never below 6 months of base pay and seniority payments, calculated under Art. 392(3) or the collective agreement (para. 6).
5. Presumption of dismissal without just cause (Art. 410(3)): it applies to anyone who is a candidate or member of the union's governing bodies, or was one less than 3 years ago. The law says "governing bodies", meaning board members. [Common interpretation:] a union representative who is not a board member does not get this presumption under this article, but remains protected by points 1 to 4; if the real reason for the dismissal is union activity, it is void under Art. 406.
6. Limits: the representative cannot, through their rights, harm the normal running of the company, and abusive exercise gives rise to disciplinary, civil or criminal liability under the general rules (Art. 414). Using the 5 hours for something other than the role, or posting texts that have nothing to do with union life, is abuse. And a representative convicted of a discriminatory act or of violating union independence loses the specific rights of the Code (Art. 407(3)).

If the company does not comply, the representative, the union or the worker can file a complaint with ACT, which enforces the offences, and go to the labour court. Fines follow the table in Art. 554, according to seriousness and turnover.

Checklist: for the representative and for the company

If you are a union representative:

1. Check that the union notified the company in writing of your name (Art. 462(4)). Without it, the company can say it did not know.
2. Use the 5 hours (8 on an inter union committee) with written notice 2 days ahead. Keep the notices.
3. For meetings, give 48 hours notice and count the 15 hours a year during working hours. Outside working hours there is no limit.
4. Ask for information in writing and count the 8 days (only in companies with 50 or more workers).
5. Ask for a place for the role; from 150 workers it is permanent.
6. If you are transferred or a procedure is opened, reply in writing citing Arts. 406, 410 and 411 and tell the union the same day.
7. Do not use the credit for anything else. Abuse removes your protection.

For the employer: a union representative is not a threat, it is an identified counterpart. Your obligations are objective: pay the 5 monthly hours (8 on an inter union committee) and the 4 days of the covered board members, provide a place (permanent from 150 workers) and a space to post information, including on the internal portal and the email list of remote workers, allow meetings at the workplace with 48 hours notice, answer in writing within 8 days the information requests under Art. 466 if you have 50 or more workers, deduct and deliver union dues by the 15th of the following month when the worker authorises it, and never transfer, sanction or dismiss anyone because of union activity. Preventing union activity, banning meetings, blocking union officers or refusing to deduct dues are very serious offences; discrimination for union membership or activity is a crime with up to 1 year in prison for the manager responsible (Art. 407). If the information requested is truly sensitive, mark it as confidential in writing and with objective criteria (Art. 413). When preparing a collective redundancy, a lay-off or a change in work organisation, inform the representatives from the start: it is mandatory and reduces the risk of nullity.

For disputes about the number of protected representatives, the count of union members or the application of a collective agreement, the union's legal support or an employment lawyer can help. But the basic rights are all in the law and do not depend on the company's permission.