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Year 08 N.º 4 Monthly Publication run 500 Free Distribution The opinions expressed by the authors of articles published herein do not necessarily represent those of Sal & Caldeira Advogados, Lda.

1 Year 08 N.º 4 Monthly Publication run 500 Free Distribution The opinions expressed by the authors of articles published herein do not necessarily represent those of Sal & Caldeira Advogados, Lda. Dear Reader: EDITOR S LETTER CONTENTS Special Rights of Female Employees Termination of Employment Contracts Due to Cessation of Activities or Extinction of Legal Person (Extinction of the Employer) The Legality of Discounts upon the Termination of Employment Contract In this number you can read: Special Rights of Female Employees, Termination of Employment Contracts Due to Cessation of Activities or Extinction of Legal Person (Extinction of the Employer) and The Legality of Discounts upon the Termination of Employment Contract. We wish you a Happy reading! Since women triggered the movements to affirm their role in society and the reduction of the legal status of inferiority, a number of triumphs have been noted, ranging from the extension of their rights to adequate protection due to their physical and mental characteristics and their role in society...cont. Pág. However, strictly speaking, Article 30 of LT applies to situations where the company remains in business, ceasing only the contracts related to jobs posts made redundant, under structural, technology and market reasons, which entails the need for an economic recovery, administrative or productive...cont. Pág. 3 The substantive issue is, in these cases, the applicability of the limit of the salary discount of up to one third, considering that the withholding of the last payment due to the employee (all or part of it) may be the employer's last resort to recover any sums owed to it in due time, which in principle is the only means...cont. Pág. 4 EDITING, LAYOUTS AND GRAPHICS SÓNIA SULTUANE - REGISTRATION: Nº 5/GABINFO-DE/005 CONTRIBUTORS: Diana Paredes e Ramalho, Gimina Mahumana Langa, Rafael Neves Banguine. TECHNICAL INFORMATION SAL & Caldeira Advogados LDA is a member of DLA Piper Africa Group, an alliance of leading independent law firms working together in association with DLA Piper across Africa. Protect the environment: Please do not print this newsletter unless necessary

SPECIAL RIGHTS OF FEMALE EMPLOYEES The pursuit of women for their valuation goes back at least to the period of the French Revolution of 789, having this fight coated the most diverse facets in

2 SPECIAL RIGHTS OF FEMALE EMPLOYEES The pursuit of women for their valuation goes back at least to the period of the French Revolution of 789, having this fight coated the most diverse facets in accordance with the rights that women aspired to secure for their gender and the temporal, geographical and circumstantial context that determined each of the battles. Since women triggered the movements to affirm their role in society and the reduction of the legal status of inferiority, a number of triumphs have been noted, ranging from the extension of their rights to adequate protection due to their physical and mental characteristics and their role in society. Regarding the employment relationships, these triumphs are reflected primarily in the prohibition of discrimination either on the access to or during employment, the protection by virtue of their physical characteristics, marked protection from harassment, particularly sexual, as well as during pregnancy and maternity, essentially supported by the various international treaties and conventions concluded over the years. Law No. 3/007, of August st - Labor Law or LT, sought to ensure the international principles related to female employees, by establishing maternity protection and special rights of female employees, in Articles 0 to. In the context of the protection of female employees, LT confers to pregnant women, the right to (i) not perform work that is clinically unadvisable to their state of pregnancy; (i) not to perform night work, whether exceptional or extraordinary, or to be transferred from the place of work from the third month of pregnancy, unless at her request or if it is necessary for her or the unborn child's health; (iii) interrupt the daily work to breastfeed, in two half-hour periods or in an one-hour period without loss of remuneration, up to a maximum period of one year; (iv) not be dismissed without cause, during pregnancy and up to one year after giving birth. From the analysis of article of the LT, it can be easily seen that although the heading of the same refers to the special rights of female employees, its content is restricted to pregnant employees. The approach in this article will be confined to the reflection on the extent to which Article (d) of the LT does in fact constitute a special right of female employees. employee that justify a special qualification, since in legal rigor, under LT no employee, whether man or woman, pregnant or not, should be dismissed without just cause. On the other hand, the LT does not provide for any special sanction for the employer nor rights to the employee in case of dismissal without just cause during the pregnancy or until a year after the birth. It seems that the provision in question, in the terms in which it is established, creates legal uncertainty and a false conviction of special protection for pregnant employees against dismissal without just cause. Thus, in the context of the revision of the LT which is in course, it seems appropriate to examine that provision, having regard to the intention of the legislator and its effectiveness. Regarding this matter and considering the general principle that no employee should be dismissed without just cause, we suggest that the LT adopts the recommendations of Convention No. 83 of the International Labor Organization concerning the Revision of the (revised) Convention on the Protection of Maternity prohibiting the termination of the employment contract based on the discrimination due to child's birth or pregnancy status and ensure stability in employment and the irreducibility of pay, in particular: (i) Ensure that maternity does not constitute a source of discrimination for employment, including access to employment; (ii) Prohibit the termination of a female employee's employment contract during pregnancy, during the period of maternity leave, in the period following her return to work to be determined by local law, on grounds of pregnancy, childbirth and its consequences, or breastfeeding; and (iii) Ensure the right to return to the same job or equivalent position with the same pay when the female employee returns to work at the end of maternity leave. Likewise, and in order to ensure the effectiveness of the above established principles, the LT should establish how the special rights of a pregnant woman will be safeguarded in the event of breach by establishing the duties to be attributed to employers and corresponding rights guaranteed to employees on the one hand. The referred article prohibits the dismissal of female employees without just cause during pregnancy and up to one year after giving birth. However, on the one hand, this provision does not provide protection to the female empresarial, Assembleia Gimina Mahumana Langa Manager gmahumana@salcaldeira.com On the other hand, it is important to reduce the inequality between men and women in relation to responsibilities as fathers and mothers, by guaranteeing rights to the father, which allows the family responsibilities to be borne equally by one or other gender, thereby reducing the discrimination and devaluation of female employees in accessing and maintaining employment. 0 SAL & Caldeira Advogados, Lda.

TERMINATION OF EMPLOYMENT CONTRACTS DUE TO CESSATION OF ACTIVITIES OR EXTINCTION OF LEGAL PERSON (EXTINCTION OF THE EMPLOYER) Termination of employment contracts is a delicate topic in labor

this matter is not exhausted at the national doctrine level and is likely to be further developed under the Labor Law.

3 TERMINATION OF EMPLOYMENT CONTRACTS DUE TO CESSATION OF ACTIVITIES OR EXTINCTION OF LEGAL PERSON (EXTINCTION OF THE EMPLOYER) Termination of employment contracts is a delicate topic in labor relations, especially due to the socio-economic consequences that can arise from the untying of the parties, in particular with regards to the effects on the employee.this matter is not exhausted at the national doctrine level and is likely to be further developed under the Labor Law. In spite of the complexity and delicacy of the subject, the dynamics of working life makes the approach to this reality inevitable, especially in times of crisis in which many enterprises have been forced to readjust themselves to remain on the market, either through the restructuring of the means of production and its activities, or by reducing operating costs, including the reduction of salary costs. However, there are situations where despite the completion of a financial reengineering, the "death" of the company (employer) becomes inevitable, obliging the same to cease its activities and/or dissolve, in extreme cases. The Law No. 3/007 of 0 August (hereinafter "Labor Law" or "LT") establishes the possibility of termination of employment contracts due to the death of the employer, where the employer is a sole trader, unless the successors continue the business. This is an objective acknowledgment of the impos- sibility of maintaining contractual relationships when the beneficiary of the work can no longer benefit from it due to death. However, although employers as legal entities can be extinguished, and consequently become absolutely and definitively impossible to receive work provided by the employee, the applicability of the figure of forfeiture does not seem to have, in the light of the LT, the same treatment when it comes to extinction of the employer as a legal entity. The LT recognizes the impossibility to circumvent termination of the employment relationships when establishing in its Article 4 the various forms of termination of employment contracts, among which, the expiry, the agreement to terminate, denunciation and termination by either of the parties based on just cause. However, there are some reservations about the applicability of the expiry of employment contracts originated by the extinction of the employer as a legal entity, by making the termination contingent to verification of the inability to deliver work or death of the individual employer which might be associated to an extensive interpretation of the principle of the right to 3 employment and job stability and the consequences that may arise from the assumption of the modality of expiry, especially, with regards to the payment of compensation for the termination of the employment relationships. What regime must, in the meantime, be applicable to employment contracts valid at the date of termination of the company's activities or otherwise extinction of the legal entity? Practice shows that termination of employment contracts should follow the empresarial, Rafael Neves Assembleia Banguine Senior Consultant rbanguine@salcaldeira.com rules set out in Article 30 of the LT (rescission of the contract on the initiative of the employer, with prior notice) in situations where the company goes through structural, technological or market related reasons, and that it is essential to the competitiveness, economic restructuring or the administrative or productive reorganization or, objectively, when intended to close an establishment. However, strictly speaking, Article 30 of LT applies to situations where the company remains in business, ceasing only the contracts related to jobs posts made redundant, under structural, technology and market reasons, which entails the need for an economic recovery, administrative or productive reorganization of the company, which results in an excess of job posts. It is a termination of employment contracts at the initiative of the employer with just cause, which must be proven by the employer, and not necessarily a situation of impossibility of obtaining work which may result in the termination of employment contracts (employer extinction). The doctrine teaches that expiry may operate, among others, due to the 4 absolute and definite supervening impossibility of carrying out the work, which may occur in cases of closure of the company's activities or termination of the legal person. At the level of comparative law, the Portuguese Labor Code establishes as one of the causes for the expiration of employment contracts the supervening, absolute and definitive impossibility of the employee delivering his work or of 5 the employer receiving it, in a clear reference to objective situations of incapacity to deliver, on the one hand, and to receive the provision of work, on the other hand. This last situation results from the extinction of the employer, which is reinforced in article 346, that is under the heading "Death of the employer, extinction of a legal person or closure of the company" extends, in number, the possibility of expiry of employment contracts by extinction of the legal person, if there is no transfer of the company or 6 establishment. The resort to the grounds set out in Article 30 of the LT to justify the termination of employment contracts following the closure of the establishment may be questioned, as it does not formally correspond to the most appropriate procedure and result in the workers concerned. It is therefore appropriate to reflect on the inclusion in the LT, as grounds for the expiry of employment contracts, the termination of the company's activities or extinction of the legal person, without, however, calling into question the right to compensation of workers as prime creditors with regard to remuneration. As an example of the regime established in article 30 of the LT, the legal regime for the expiry of employment contracts due the extinction of the company should indicate the formalities, compensation system and procedures to be followed for the execution of this type of termination of employment contracts, which will contribute to greater certainty and legal certainty in the business environment Article 5, paragraph, line c) of Law no. 3/007, of August (Labour Law) Article 5 () (b) 3 Article 4 of the Labor Law 4 Fernandes, António Monteiro (004) - Labor Law, th Edition, Almedina - Coimbra, page 57 5 Article 343 paragraph B) of the Portuguese Labor Code 6 Article 346 () of the Portuguese Labor Code 03

THE LEGALITY OF DISCOUNTS UPON THE TERMINATION OF EMPLOYMENT CONTRACT The subject which we propose to discuss concerns to the legality of the deductions that can be made by the employer upon

4 THE LEGALITY OF DISCOUNTS UPON THE TERMINATION OF EMPLOYMENT CONTRACT The subject which we propose to discuss concerns to the legality of the deductions that can be made by the employer upon termination of an employment contract in situations where the employer has amounts receivable from the employee, regardless of the nature of the credit. As a general rule, the Labor Law confers special protection to the remuneration earned by the employee, expressly and unequivocally stating that "the remuneration shall not, pending the employment contract, suffer any discount or withholding that is not expressly authorized in writing by the employee " and that "in no case should the total value of the discounts exceed one third of the monthly remuneration of the employee ", in paragraphs and 5, respectively, of article 4 of Law no. 3/007, of August, hereinafter the Labor Law or LL. From the foregoing, it is clear that the employer may, with the authorization of the employee, deduct any credits owed to it from the employee's salary, provided that the employer complies with the legally established limit (one third of the employee's remuneration). It is worth mentioning, however, that an employee may, upon termination of his employment contract, have one or more values to be received from his employer, by way of: (i) remuneration; (ii) advance notice; iii) severance pay or compensation; (iv) annual leave days accrued and not taken (converted into monetary value); (v) performance bonuses, seniority bonuses or 3th salary, among others. However, the employer may have several receivables owed by the employee, arising from, among others, any: (i) salary advance; (ii) expenses incurred with unjustified travel, trainings, medical care; (iii) operational failures; depending on the benefits granted to the employee, which must naturally be paid upon termination of the employment contract. Depending on the amounts involved, often, the amount owed by the employee surpasses largely the salary/remuneration earned, placing the employer in the face of a dilemma upon termination of the employment contract. empresarial, Diana Paredes Assembleia e Ramalho Senior Consultant dramalho@salcaldeira.com The substantive issue is, in these cases, the applicability of the limit of the salary discount of up to one third, considering that the withholding of the last payment due to the employee (all or part of it) may be the employer's last resort to recover any sums owed to it in due time, which in principle is the only means of protection which the employer may use when terminating the employment contract. The dilemma gains more importance, when considering that the tax legislation establishes, in accordance with paragraph d) of Article 6 of the Personal Income Tax Code, approved by Law No. 33/007, of December 3, with its subsequent amendments, the exemption from taxation of amounts received as severance pay, representing an express statement that the State itself "is sensitive" and intends to protect, to a large extent, the precarious situation in which the employee is in case he/she is entitled to receive severance pay for the termination of his/her employment contract. Our Labor Law does not adequately respond to this question, to the extent that, as mentioned above, it only protects the remuneration and not the other payments to be made to the employee. However, there is still doubt concerning the possibility of proceeding with the discount/withholding of the remuneration to be earned, considering the limitations and interpretations listed above. It is our understanding that, if we strictly apply the Labor Law, it only gives special protection to the salary/remuneration earned by the employee, including the last salary, and not to any other amounts that are payable to the employee, as for example, any severance pay or compensation, upon termination of his/her employment contract. However, even if the risk of the former employee/debtor not honoring the commitments assumed after the termination of the employment relationship with the employer being high, and the Labor Law does not foresee the criteria for the deduction of the final amounts receivable by employees, considering the principle of "favor laboratoris", we do not recommend the employer to proceed with the discount above, of one third in the amounts that should be paid to the employee, even in situations where there is an express authorization of the employee. According to our experience, it is not forbidden that the former employee/debtor, having income for this purpose, and intending to avoid any default, after receiving the amount that he/she was entitled to, decides to repay the full amount due to the his/her employer freeing him/herself from the debt, or that the employer makes use of other legal mechanisms to obtain payment in a timely manner. Being the Labor Law under a revision process, and being this a recurring issue for employers, we recommend that this matter should be included in the range of innovative aspects of the Law to be approved, including the formalities and procedures that can be followed by the employer to safeguard its legitimate interests. Principle of irreducibility of remuneration Principle of intangibility of remuneration 04 SAL & Caldeira Advogados, Lda.

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LABOUR RIGHTS COMPARISON

LABOUR RIGHTS COMPARISON SPANISH LEGISLATION RYANAIR BASIC LABOUR RIGHTS AND DUTIES Royal Legislative Decree 2/2015, of 23 October, approving the revised text of the Spanish Workers Statute Law. a) Right