What is the value proposition of the preliminary project?

The draft reform of the Labor Code, known as “Work XXI”, proposes a profound review of Portuguese labor legislation, with a transversal impact on labor relations. The presentation in the form of a draft to encourage a broad public debate and social consultation is a sign of maturity, but should not be confused with a sign of consensus. The value proposition lies in its ability to present a strategic vision, faced with the structural challenges of the labor market — and not just specific cyclical emergencies.

The ongoing labor legislative reform cannot be seen as an exercise in reacting to isolated phenomena or media cases. Labor Law must be considered with a medium and long-term horizon, as this is the only way to guarantee greater effectiveness of its rules. This branch of Law is not — nor should it be — a superhero that intervenes in all contractual relationships. Its strength lies precisely in the ability to distinguish where intervention is necessary and where excessive regulation can generate perverse effects. In any case, criticism regarding the temporal relevance of the reform seems to forget that the 2009 Labor Code has already had 24 changes, with those occurring in 2019 and 2023 being very relevant.

However, in this draft there are proposals that seek to respond to real and lasting transformations in the labor market, with solutions that, although not consensual, reveal an updated reading of the labor market. The changes relating to economically dependent independent workers and the presumption of an employment contract on digital platforms are responses to adapt legislation to reality. In fact, the draft highlights the legislator’s intention to provide greater coherence to the legal system, without falling into the temptation of extending Labor Law to all forms of professional activity.

In turn, measures relating to parenthood, such as increasing initial leave by sharing it between parents, are important steps to promote greater equity and family co-responsibility. As for the teleworking regime, the flexibility of the teleworker’s choice of workplace translates into not only an important adaptation to the needs of labor relations, but also a more effective reconciliation between personal and professional life.

Also worth mentioning is the review of the collective bargaining regime, with the limitation of the validity of conventions and the possibility of broad corporate application. These measures can contribute to revitalizing collective bargaining, as long as they are accompanied by mechanisms that guarantee representation and balance between the parties. However, its originality may always leave some questions regarding its practical effectiveness.

On the other hand, measures such as the replacement of the individual time bank, changes to the fixed-term contracts regime and the revocation of the “ban” on outsourcing they should not be seen as automatic threats to job stability. On the contrary, they can be legitimate business management instruments, as long as they are framed by clear rules and accompanied by appropriate guarantees. The new solutions presented in the draft are not, in themselves, synonymous with precariousness — and modern Labor Law must be able to make this distinction.

We also have a proposal for modernity and adjustment with other European legal systems with the change in the general rule of reinstatement after dismissal, making it dependent on a court decision in case of opposition from the employer. With the proposed regime, it will be up to the courts, considering the circumstances in the specific situation, to assess the arguments used in opposition to reinstatement and construct valid criteria through jurisprudence.

Finally, the draft appears to understand that the classic employment relationship identified by Labor Law manuals is no longer, for the most part, that of the First Industrial Revolution in the terms described by Charles Dickens. In recent years, it has been possible to monitor the growth of workers’ bargaining power in certain sectors of activity, especially when human capital is scarce and highly specialized. In this way, the draft safeguards the worker’s autonomy and freedom in the face of unilateral decisions by the Working Conditions Authority within the scope of actions to recognize the existence of an employment contract. This principle seems to us to be fundamental and perfectly safeguarded, once again, through judicial means, as the freedom and autonomy of the worker’s decision is evaluated by a judge.

The “Work XXI” draft is neither a finished nor consensual reform. This is indeed a proposal that deserves to be discussed seriously, without caricatures or simplifications. Labor Law must evolve, but this evolution must be guided by principles and not by impulses. Your job is not to be everywhere, but to be where it is really needed — under penalty of not protecting those who need it most.