Portuguese companies could end up cutting wages for coffee and cigarette breaks

cigarette breakGalp Energy wants to set a new precedent by forcing their employees to record break times - to have coffee, breakfast or to smoke a cigarette - and warned that it will start cutting wages due to these breaks, as they are not considered effective working time.

A Spanish court recently found the company’s actions to be perfectly lawful, but what about in Portugal? The Labor Code is clear: Portuguese workers are only entitled to a break at the end of five consecutive hours of work (or at the end of six consecutive hours of work if the working period is longer than 10 hours) and the only caveat, in addition to this, is that it is mandatory to have a rest period of 11 hours in a row between two consecutive days of work.

Everything else in work culture are practices acquired over the years and that can, however, become rights. Regular pauses in Portuguese workplaces "is something so common that nobody has ever remembered to legislate," claims lawyer Lúcia Gomes.

"This court decision - albeit Spanish - warns of the need to include these breaks, without loss of remuneration, in the law", she stresses. Normally, the employment contracts themselves do not provide for such breaks, but these may be provided for in collective employment contracts or in the company's internal regulations.

"There must always be an authorization from the employer - the worker's schedule is the one fixed in the employment contract and this malleability always depends on the company's authorization", warns Ms. Gomes.

"However, if it is a regulation of the company, it becomes a right of the worker and the breaks cannot be deducted from the salary. In Portugal it is a source of law", underlines the lawyer.

"The worker can always claim that this has been the case for years and they never discounted it", exemplifies the lawyer, who gives as an example the decision of the Supreme Court of Justice forcing the Caixa Geral de Depósitos to change its meal allowance policy.

The CGD wanted to start paying the meal allowance only on actual working days, changing a practice that had been in place at the bank for 40 years and which consisted of paying the allowance throughout all 12 months of the year (including, therefore, any time taken off for holidays) . The decision of the Supreme Court of Justice at the end of November 2018 confirmed the action brought by the CGD Group Workers Union (STEC): the lunch allowance paid by the public bank in time taken off for holiday is still an integral part of remuneration.

"It is in the law that the meal allowance should not be paid during the holidays because one does not work, but the Supreme Court considered that since workers have always received it, this was already part of their remuneration", says Lúcia Gomes.

In article 197 of the Labour Code, which refers to "Working Time", article 2 states: "The occasional interruption of the daily work period is inherent to the satisfaction of the employee's urgent personal needs, resulting from the employer's consent.”

If something similar were to occur in Portugal as what recently happened in Spain - if a company decides to not pay for workers' break time - there would be a large division between the courts’ separate understandings, as the lawyer points out. "The jurisprudence would be divided in the sense of the breaks being considered company time or not", predicts Ms. Gomes, claiming that there are already contrary decisions about what can or cannot be considered employer time.

"These coffee and cigarette breaks are a very ingrained practice in Portuguese companies", she explains, defending: "The law should include as a right of workers regular breaks during the workday far beyond what is expected. It is a matter of protection of the health and dignity of those who work".

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0 #1 Vicky Beck 2020-02-18 14:33
This reminds me of a situation in the 80s. I worked for a small education company (Grant Maintained Schools Centre (GMAC) and I got annoyed people taking long cigarette breaks. So one day I just downed phone and pen annd told the MD I was going home a half hour early. He asked me if I was unwell.. I told him I was fine just taking my cigarette breaks at the end of the day.. He said "You don't smoke". I replied that I was taking the same amount of down time as everyone else but at the end of the day.. He changed down time. People still got half an hour a day smoke time ... I got to leave early!

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