One of the matters that have undergone profound changes with the revision of the Labour Code operated by Law 93/2019 of September 4 concerns the hour bank.
Until recently, worker and employer could agree to an hour bank regime in an employment contract – that is, a system in which the worker worked overtime, without these hours being considered overtime. Subsequently, these hours were compensated for in the manner agreed between worker and employer.
This system was called “individual hour bank” and could vary from worker to worker, even within the same company. With the new wording of the labour code, this institute disappears, leaving only the “group hour bank”, whose discipline belonged only to the instruments of collective labour regulation.
With the changes introduced by Law 93/2019 of September 4, it became possible to establish a group hour bank in a company for all workers of a team, section or economic unit, provided that it was approved in a referendum by the workers.
It is in this referendum that the greatest novelty resides, still causing perplexities and doubts in its application. We will start, then, with the steps to be taken in the case of employers who want to establish an hour bank regime through a referendum.
FIRST STEP: The employer must prepare a draft hour bank scheme, including:
- a) The scope of application, indicating the team, section or economic unit to be covered and, in these, the excluded professional groups, if any;
- b) The period, not exceeding four years, during which the regime is applicable;
- c) Compensation for additional work performed, which can be done through at least one of the following methods:
- i) Equivalent reduction in working time;
- ii) Increase in the vacation period;
iii) Payment in cash;
- d) The advance with which the employer must communicate to the worker the need to provide work;
- e) The period in which the reduction in working time to offset overtime performed must take place, on the initiative of the worker or, failing that, of the employer, as well as the advance in which any of them must inform the other of the use of this reduction.
SECOND STEP: After this document has been prepared, it is publicized on the places where the working hours are posted and communicated to the workers’ representatives and the ACT – all at least 20 days before the referendum date. A call for the referendum must be drawn up and sent to these entities as well.
In the absence of workers representatives covered by the group hour bank regime, they may designate, among them, within five working days of receiving the information referred to in the previous paragraph, a representative commission with a maximum of three or five members, depending on the regime covering up to five or more workers.
THIRD STEP: Conducting the referendum. If approved by at least 65% of workers, the hour bank can be applied to all workers.
AND IN THE CASE OF MICRO ENTERPRISES?
In micro-enterprises or if the number of workers covered by the hour bank scheme project is less than 10, the employer (if there are no employee representatives) must request the referendum to ACT, which will indicate the date of the event within ten working days of its request.
If, after 90 days, the ACT does not set a date, the employer can proceed with the scheduling of the referendum, communicating the date to ACT so that it can supervise it. This date must be set at least 20 days in advance and be communicated to workers in writing.
In this communication, the employer indicates:
Voting takes place under the supervision of an ACT representative and can be accompanied by two employee representatives. After the voting is finished, the ACT representative proceeds to determine the result of the referendum and immediately communicates it to the employer, in writing.
Afterwards, the employer publicizes the result of the referendum in the places where the working time maps are posted, communicates it to the workers’ representatives, and, if the hour bank scheme has been approved, designates the day on which the work begins. application, at least five working days in advance.
Now, after analysing the regime, it seems to us that an excessively long and complex system has been put in place, out of step with the reality of the majority of the Portuguese businesses. Additionally, it raises the biggest question of what ACT’s supervision in the referendum consists of.
Furthermore: if the ACT does not equip itself with the technical and, above all, human resources to hold a referendum in all companies, the interpreter is left not knowing whether the company will be able to carry out the referendum or if, instead, it will be held hostage by this lack of resources.
Finally, we currently live in a transitional period: all individual hour banks established until October 2019 will remain unchanged until October 2020 – at which point there will be no individual hour bank.
Thank you for being on that side,
David Santos Silva