Working time adaptability in Portugal: rules and limits

Your employer mentioned "adaptabilidade" and your week suddenly has 48 or 50 hours, without a cent of overtime? It can be legal: the Portuguese Labour Code allows normal working time to be defined as an average, with long weeks offset by short ones (Arts. 204 to 207). But there are caps, a 2 month brake and one detail that catches many people: if you do not answer the proposal within 14 days, the law presumes you said yes.

What adaptability is (and what it is not)

Claudia works in a shopping centre store, with a base salary of 1,000 euros for 40 hours per week. The sector's collective agreement provides for adaptability: in November and December Claudia works 48 hour weeks; in January and February, 32 hour weeks. The average comes out at 40, and her salary is the same every month. That is working time adaptability (adaptabilidade): your normal working time stops being a fixed weekly number and becomes an average (Arts. 204 and 205 of the Labour Code).

What adaptability is not:

• It is not an hours bank. In the hours bank, extra hours go into a credit, to be repaid later with time off, extra holidays or money. In adaptability, the compensation is built into the calendar of long and short weeks itself.
• It is not the parents' flexible schedule. That one is a right of workers with a child under 12, who choose their start and finish times (Art. 56). Adaptability serves the employer's interest.
• It is not a blank cheque. The general working hours limits still exist. They are simply measured as an average, with specific daily and weekly caps.

Who controls the clock, the posted timetables and the rules for changing them are still those of the work schedule.

The three routes, and the caps of each one

1. By collective agreement (Art. 204). The collective instrument can define normal working time as an average. Caps: the daily limit can rise by up to 4 hours (8 + 4 = 12 hours per day) and the week can reach 60 hours. Only overtime worked for reasons of force majeure stays out of this count (no. 1). And there is an extra brake: over any 2 month period, the average cannot exceed 50 hours (no. 2). A company cannot chain 60 hour weeks even with the collective agreement on its side.

2. Individual (Art. 205). Employer and worker define the average by agreement. Lower caps: 2 more hours per day (up to 10) and weeks of up to 50 hours (no. 2). In the short weeks, the compensation takes the form of up to 2 fewer hours per day or, if agreed, full or half days off, without touching the meal allowance (no. 3).

3. Group (Art. 206). This route extends the scheme to those who did not join. If the collective agreement allows it, the employer can apply the Art. 204 scheme to a whole team, section or economic unit when at least 60% of the workers of that structure are covered by the agreement (no. 1). And if a proposal for individual adaptability is accepted by at least 75% of the team, the scheme can be applied to everyone (no. 2). Colleagues joining or leaving do not bring the scheme down, as long as the percentage holds (no. 3).

Breaching any of these caps is a serious administrative offence.

The 14 day rule, the silence trap

Diogo, a logistics operator, received a document from HR titled "Proposta de regime de adaptabilidade". He skimmed it, put it in a drawer and never replied. Three weeks later his shift moved to 48 hour weeks. Legal? Yes: the individual adaptability agreement can be born from a written proposal by the employer, and it is presumed accepted if the worker does not object, in writing, within 14 days of learning about the proposal (Art. 205 no. 4).

Three things to remember:

• The objection must be written. Saying "I disagree" in a meeting stops nothing. A dated email is enough.
• You do not need to justify it. It is an agreement: you have the right to simply not want it, and the law provides no penalty for refusing.
• Keep track of the date you learned about the proposal. The 14 days run from there.

What if a collective agreement on the matter enters into force later? The individual scheme survives until the end of the reference period then under way (no. 5).

Over how many months is the average taken?

The reference period is the window of time in which long and short weeks offset each other (Art. 207):

• Set by collective agreement: up to 12 months.
• Without a collective agreement: 4 months.
• 6 months in the special cases of no. 2, among them: management or director roles, jobs with long distances between home and work, security and surveillance work, services that cannot stop (hospitals, ports and airports, media and telecommunications, energy and waste collection, industries running non-stop, agriculture, urban transport), predictable activity peaks such as tourism, and force majeure or accidents.

Changing the reference period midway is only possible when objective circumstances justify it, and it can never result in more hours of work than you would have done without adaptability (no. 3). Ignoring the reference period is a minor administrative offence; breaching the rules on changing it is a serious one (no. 4).

The money: when 50 hour weeks pay no overtime, and when they do

Within a valid scheme, the logic is harsh but simple: the hours of the long weeks are not overtime, because they belong to your normal working time, just measured as an average. Claudia's salary is the same in December (48 hour weeks) and in January (32).

The maths change when the scheme fails. Claudia's hourly rate is (1,000 euros x 12) : (52 x 40) = 5.77 euros (formula of Art. 271). Without valid adaptability, with no applicable collective agreement and no individual agreement, a 10 hour day contains 2 hours of overtime: 7.21 euros for the first (25% premium) and 7.93 euros for the second (37.5%), which is 15.14 euros per day. Over a 50 hour week, that is around 76 euros, every single week. That is the difference between a properly built scheme and "adaptability" in name only.

These hours are always overtime, even with a valid scheme:

• hours above the caps (10/50 for the individual route, 12/60 by collective agreement);
• work done outside what the scheme set for that period (Art. 226 no. 1);
• [Common interpretation: the excess over the average. If, at the end of the reference period, your average came out above your normal working time, those hours went beyond what the scheme allowed; the dominant reading is that they are paid as overtime, with the premiums of Art. 268.]

Two anchors that remain standing: the maximum average of 48 hours per week including overtime (Art. 211), explained in the working hours limits guide, and the working time records (Art. 202), which are your proof of how many hours you did each week. Without records, the average is whatever the company says.

Who can say no to adaptability

The law keeps several groups out of the scheme, or lets them leave, and breaching any of these protections is a serious administrative offence:

• Pregnant workers, workers who have recently given birth and breastfeeding workers have the right to be exempted from working under adaptability, an hours bank or a compressed schedule (Art. 58 no. 1). In the case of bottle-feeding, the exemption covers either parent, when the scheme affects its regularity (no. 2). See the other rights in the maternity leave guide.
• A worker with a disability or chronic illness, including active cancer under treatment, is exempted if the scheme could harm their health or safety. And there is a mandatory prior step: a medical exam before the schedule starts (Art. 87 nos. 1 and 2).
• A student worker cannot be forced into adaptability that clashes with classes or exams (Art. 90 no. 6). Working under the scheme earns them 1 paid day off per month (no. 7).
• Under group adaptability, the following stay out unless they agree in writing: workers with a child under 3, or a child with a disability or chronic illness of any age (Art. 206 no. 4). Workers with a child between 3 and 6 also stay out, by presenting a declaration that the other parent works and cannot provide care.
• Night workers under adaptability should not exceed 8 hours per day as a weekly average (Art. 224 no. 2). The full rules are in the shift work and night work guide.

Six situations, what the law says

How to react if the company does not comply

1. Identify the route. Collective agreement? Individual agreement? Group extension? Ask for a copy of the proposal or of the agreement clause. Without a valid route, there is no adaptability at all.
2. Do the maths on the average. Gather your working time records and add up the weeks of the reference period. Compare with your normal working time.
3. Put it in writing. If you are still within the 14 days, object in writing. If you hold one of the exemptions (Arts. 58, 87 or 90), invoke it by email and keep proof. If there are hours beyond the scheme, claim the payment: wage credits survive until one year after the contract ends (Art. 337).
4. Complain to ACT. Breached caps, ignored exemptions or missing time records are administrative offences. See how to file an ACT complaint; it is free.

For companies: using adaptability without risk

If you manage a team, adaptability is one of the most efficient tools to match schedules to demand, and one of the easiest to set up badly. Choose the right route: confirm that the applicable collective agreement provides for the scheme before invoking it, and use the written proposal of Art. 205 when there is none. Keep proof of delivery of the proposal and of the date, since the 14 days run from knowledge, and file every objection received. Respect the caps (10/50 on the individual route, 12/60 with the 50 hour average brake over 2 months on the collective one) and monitor the average throughout the reference period, not only at the end. Before rostering someone, check the exemptions of Arts. 58 and 87, remembering that chronic illness requires a prior medical exam, and, in the group version, track the Art. 206 percentages at every arrival and departure. Keep the working time records impeccable: they are what proves the average closes. For drafting clauses in sectors with their own collective agreement, checking with a lawyer is the prudent recommendation.

General information, not legal advice. Always confirm figures and deadlines with the official sources.