Pursuant to the provisions of article 258 of the Portuguese Constitution, “The employee is entitled to compensation under the terms of the contract, norms governing his work or uses, in return for his work.” In this sense, the remuneration covers not only the basic remuneration, but also other benefits that the worker receives regularly and periodically either in cash or in kind.
Thus, there are benefits that can be included as retribution of the worker, as well as others that by nature are immediately excluded.
The Labor Code provides in its art. 260 which benefits are included or excluded from the consideration.
“1 – Do not consider retribution:
(A) sums received in respect of daily subsistence allowances, travel allowances, transport costs, installation allowances and other equivalent costs, payable to the worker for travel, new premises or expenses incurred on his employer’s behalf, except where such travel or Such sums, in excess of their normal amounts, have been provided for in the contract or must be considered as an integral part of the employee’s remuneration;
B) The bonus or extraordinary benefits granted by the employer as a reward or reward for the good results obtained by the company;
C) benefits arising from facts related to the professional performance or merit, as well as assiduity of the employee, whose payment in the respective reference periods is not guaranteed in advance;
D) Participation in the profits of the company, provided that the employee is assured by the contract a certain remuneration, variable or mixed, adequate to his work.
2 – The provisions of paragraph a) of the previous paragraph shall apply, mutatis mutandis, to the credit for deficiencies and to the meal allowance.
3. The provisions of paragraph 1 (b) and (c) shall not apply to:
A) The gratuities due by virtue of the contract or the rules that govern it, even if their attribution is conditioned to the good services of the worker, nor to those that, by their importance and regular and permanent character, should, according to the uses, Be considered as an integral element of the remuneration of the latter;
(B) benefits related to the results achieved by the company when, both in its title and in its regular and permanent allocation, they are stable, irrespective of the variability of their amount. ”
From this article, and for the purposes intended, what is important to retain is the fact that there are benefits that, although they can be considered a priori to be excluded from the remuneration, become an integral part of this, since they are contractually provided, or that If so they should be considered by the uses of the company.
For a better understanding, let us take a look at the Judgment given by the Court of Appeal of Lisbon on 12-03-2009, where this situation is foreseen for the amounts paid as allowances,
“1. The regular and periodic benefits paid by the employer to the employee, irrespective of the designation assigned to them in the contract or receipt, shall not be considered an integral part of the remuneration unless they have a specific and distinguishable cause, other than the remuneration of work. 2. It is for the employer to prove that the sums he pays to the worker on a monthly basis are real subsistence allowances, that is to say, they are intended to reimburse the worker for expenses incurred in the service or in the interests of the undertaking. 3. If he can prove that the payment of those sums was for that purpose or had a specific and distinguishable cause, other than the remuneration of work, such sums can not be considered an integral part of the remuneration, unless the employee can prove that the same Exceeded the costs actually incurred by them and the extent to which they exceeded, and that those sums had been provided for in the contract and must be regarded (in so far as they relate to those surpluses) by the uses of the undertaking as an integral part of its remuneration. 4. If the employer is unable to provide such proof, such amounts shall be considered an integral part of the remuneration and the annual average of these amounts shall be included in the calculation of holiday pay, holiday allowance and Christmas allowance up to Date of entry into force of the Labour Code.
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