Labour Inspection Sanctions and Remedies Workshop - PowerPoint Presentation

Labour Inspection Sanctions and Remedies Workshop Venice, 2-3 December 2010 J. Pintado NunesPortugal www.ilo.org/labadmin

National experiences - Portugal Main enforcement procedures Administrative offences Direct and joint liability Administrative sanctions proceedings

National experiences - Portugal Main enforcement procedures Improvement notice to remedy any fault regarding health and safety within a reasonable time limit Written warning so that a minor breach of the law is overcome within a reasonable time limit, whenever there is no serious and irreparable damage for the worker, labour administration or social security Prohibition notice , in the event of immediate or imminent danger for the safety or health of workers notice of infringement report to the Public Prosecutor

National experiences - Portugal Prohibition of works Notice for improvement

National experiences - Portugal Notice of infringement demands for: direct verification of facts by the labour inspector indirect verification through documents or other registries violation of a law or regulation subject to the competence of ACT infringements punishable with a fine Report of infringement : offences that the inspector cannot confirm personally demands for 2 witnesses

National experiences - Portugal Administrative offences main characteristics sanction: fine or additional first part (or all, in case the offender does not appeal) of proceedings follows its terms on the Administration Infringements of labour law, including health and safety laws and regulations are generally classed as administrative offences

National experiences - Portugal Labour administrative offences : any typical, unlawful and culpable fact involving the breach of a provision conferring rights or imposing obligations on any part in the context of labour relations punishable with a fine or, in some cases, with a fine and an additional sanction Legal provisions: Labour Code and, accessorily, Penal Code Law 107/2009 and Penal Procedure Code

National experiences - Portugal Administrative offences Administrative offences are sanctioned with fines and additional sanctions 3 classes of offences: minor, serious and very serious Values of fines are fixed in between a minimum and maximum level Amounts depend on the offender’s turnover and the blame The amount of fines is expressed in UC (Procedural Unit of Account). Why? Keep pace with inflation (1/4 of the Social Support Index)

National experiences - Portugal Administrative offences Turnover is obtained by reference to the calendar year previous to the breach First year of exercise: the law considers the turnover is inferior to € 500 000, 00 Labour inspectors get the information on the turnover from a document all employers are obliged to send to labour administration each year, with data on the enterprise, the name of the workers, qualifications, profession, wages, total working hours and collective agreements in force If the employer does not say what the turnover is, it is taken that it is equal or greater than € 10 000 000,00

National experiences - Portugal Amount of fines for legal persons Amount of fines for natural persons or legal persons with no employees

National experiences - Portugal Direct liability Joint liability

National experiences - Portugal Fines are increased in case of repeated offences ( upper and lower limits are increased by a third If several administrative offences are committed together, the amounts of fines are added: maximum limit cannot exceed the double of the maximum amount for the specific fines in cause. Where there are breaches to the norms relating to health and safety at work due consideration is also taken of: prevention measures in fault; permanent or temporary nature of the breach; number of workers potentially affected; measures adopted and instructions given by the employer to remove the risks

National experiences - Portugal

National experiences - Portugal

National experiences - Portugal Notice of infringement describes the facts identifies offenders and liabilities identifies the violated norms and applicable sanctions sheet with indebt credits of workers and social security all available proof , photos , declarations

National experiences - Portugal Proceedings Offender is notified to pay the fine or to present defense in 15 days Any worker can receive the notification If the accused consents , notification can be made through fax or e-mail voluntary payment is admitted for minor and serious offences payment is possible in the bank or ATM machines payment does not exclude liability for adittional sanctions Final administrative decision contains description of the facts, proofs, breached regulations and explanation on the specific amount of fine

National experiences - Portugal Proceedings Final decision : filing by acquital or imposition of fine, additional sanction or admonition Decision can contain an order of payment of any amount for the workers or social taxes offender can request payment in installments appeals are referred to the labour court, whithin 20 days appeal does not suspend the effects of the decision unless the appellant pays a caution or provides a bank guarantee

National experiences - Portugal Proceedings appeals are received by the Public Prosecutor in the labour court during judicial phase , LI has no competence : the Public Prosecutor promotes proof of all facts reformatio in pejus as a limit for the judge admonition is possible for minor offences and low level of guilt until the sentence , the Public Prosecutor can drop from accusation with agreement of the accused and the LI

National experiences - Portugal Proceedings the rulling of 1st instance courts can be subject to appeal to Tribunais da Relação sentences are possible of appeal for fines above 25 UC (€ 2550, 00) or additional sanctions collected fines revert in half to the LI and the rest for the Work Accidents Fund or for social security and the State budget

National experiences - Portugal Simplified proceeding applicable to minor or serious offences with fines equal or superior to 10 UC offender cannot have been condemned for a previous offence in relation to which has not overcome a period of time superior to the limitation period counted since the 1st condemnation Offender can pay the fine with a reduction of 25% In case the offender does not pay or present proof of having fulfilled the due obligation, the proceeding continues its regular terms