The legal framework for employment relationships arising from domestic service contracts is set out in Decree-Law no. 235/92, of October 24.
As part of the “Decent Work Agenda”, Law no. 13/2023 of April 3 was published, which also amended (and republished) the aforementioned Decree-Law.
As such
a) the wording of articles 13, 14, 17, 24, 28, 30, 32 and 36 of the aforementioned Decree-Law was changed - see article 6 of Law no. 13/2023, of April 3;
b) Article 4, paragraphs 1, 2 and 4 of Article 8, paragraph 2 of Article 10, Articles 12, 16, 18 to 23, and 25, paragraphs 1 a), b) and e) and paragraph 2 of Article 28 were repealed. Article 28(2), Articles 34, 35 and Article 36(3) of the aforementioned Decree-Law - cf. Article 33(d) of Law 13/2023 of April 3; and
c) Article 37-A was added to the aforementioned Decree-Law - see Article 17 of Law no. 13/2023, of April 3.
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[Preliminary note: in any omission of legislation to which the articles refer, Decree-Law no. 235/92, of October 24, should be taken into account].
This means that
Regarding the normal working period
The normal working period will now be 40 hours, as opposed to the previous 44 hours (Article 13(1));
The average terms of this period will be observed in accordance with the Labor Code (no. 3 of art. 13).
Meal and rest breaks
The right to take meal and rest breaks, without prejudice to the surveillance and assistance duties to be provided to the household, will now apply to all domestic service workers, regardless of whether they are housed or not (Article 14(1));
The night's rest that housed workers are entitled to - except in the case of caring for the sick or children up to the age of three - will now have a minimum duration of 11 consecutive hours, instead of the previous 8 hours (Article 14(2));
The organization of meal and rest breaks, in the absence of an agreement, will now be set by the employer, taking into account the limits laid down in the Labour Code, instead of custom (Article 14(3)).
Pay during vacation
When determining the remuneration for board and lodging, the value of the guaranteed minimum monthly wage is taken into account, instead of the value of the guaranteed minimum wage for domestic service workers, under the terms of the respective legislation (Art. 17(3)).
Public holidays
Domestic service workers are now entitled to take the public holidays provided for in the Labor Code, and are entitled to a compensatory rest to be taken by the end of the following week, except for reasons of reasonable interest to the household, in which case they are entitled to the corresponding remuneration (Article 24(1), (2) and (3));
Nor can the pay of domestic service workers be reduced on account of public holidays (Article 24(4)).
Termination of contract
This will only occur in the event of the employer's manifest economic insufficiency, which arises after the contract has been signed, or in the event of a substantial change in the employer's family life circumstances which makes it immediately and practically impossible for the employment relationship to continue, namely when the need for assistance underlying the employment ceases (no. 1 of art. 28); being that
In the situations described above, the termination must be notified, accompanied by the respective grounds, 7, 15 or 30 days in advance, depending on whether the contract lasted up to 6 months, between 6 months and 2 years, or for a period of more than 2 years (Article 28(5)).
Regarding dismissal for just cause by the employer
The employee's fault is now stipulated in the facts and conduct listed in Article 30 (Article 30).
With regard to termination with just cause by the employee
Harassment by the employer, other members of the household or other workers is now listed as an example (Art. 32(i)).
Minimum working age
Article 4 has been repealed and the general regime laid down in the Labor Code will now apply, in accordance with the provisions of (new) Article 37-A.
Regarding the trial period
Article 8(1), (2) and (4) having been repealed, the general regime laid down in the Labor Code will now apply by virtue of the new Article 37a.
It should be noted that, in the case of a lodged worker, he or she must be given a period of no less than twenty-four hours to leave the accommodation (Article 8(3)).
Regarding the guaranteed minimum wage for domestic service workers
Article 10(2) has been repealed and the general rate will now apply.
Regarding vacations, vacation pay and Christmas bonuses
Articles 12, 16 and 18 to 23 have been repealed, and the general regime laid down in the Labor Code will now apply, in accordance with the provisions of (new) Article 37-A.
With regard to Abandonment of Work and the documents to be given to the worker
Articles 34 and 35 have been repealed, and the general regime laid down in the Labor Code will now apply, in accordance with the provisions of (new) Article 37-A.
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Finally, and in accordance with the above, the Labor Code will now be expressly applied to relationships arising from the domestic service contract in everything that is omitted from Decree-Law no. 235/92, of October 24 (art. 37-A).
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As for the entry into force of the changes referred to here, Article 37(1) of Law 13/2023 of April 3 stipulates that this occurs “on the first day of the month following its publication”, i.e. May 1, 2023.
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Finally, we must stress that, as was the case previously, Article 2(3) expressly states that “Incidental work, the performance of a specific task on an intermittent basis or the performance of domestic work on an au pair, autonomous or social volunteer basis shall not be considered domestic service”.
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