The work in public functions may be performed by means of public employment relationship or service delivery contract, under the terms of the General Labour Law in Public Functions.
The public employment relationship is that one by which an individual performs his/her activity to a public employer, on a subordinate basis and by way of compensation.
Public employment relationship has the following forms:
- Employment contract in public functions, employment relationship formation basic modality, applied to all situations that, according to the law, the appointment and limited executive tenure shall not be used;
- Appointment - the public employment relationship is formed by appointment in cases of fulfilment of functions within the scope of the following assignments, competencies and activities: generic and specific missions of Armed Forces in permanent establishment plans; The Foreign Office; Security and Intelligence Service; Criminal Investigation; Public security in public space and in institutional services (prisons); Inspection Activities;
- Tenure – public employment relationship formed for the performance of positions not integrated into careers, namely, managers and the performance of functions fulfilled with a view to obtaining specific training, academic qualifications or professional degree by public employee with public employment relationship for an indefinite period of time
employment contract in public functions
As a rule, the public employment relationship is formed by way of employment contract in public functions for an indefinite period of time.
This contract shall be subject to a written form and contain the signature of the parties, as well as the following indications:
- Name or business name and domicile or head office/headquarters of the contracting parties;
- Type of contract and respective term where applicable;
- Activity contracted, career, category and public employee’s compensation;
- Place and normal working hour’s period;
- Date of the commencement of the activity;
- Date of the termination of the contract (when applied);
- Identification of the entity that authorized the contracting.
The public employment relationship for a fixed or unfixed temporary term may only be formed in the following substantiated situations:
- Direct or indirect replacement of the absent public employee or that, for any reason of any kind whatsoever is temporarily prevented from fulfilling service;
- Direct or indirect replacement of the public employee in relation to whom an appraisal action is pending in court concerning the lawfulness of the dismissal;
- Direct or indirect replacement of the public employee under an unpaid leave situation;
- Replacement of a public employee working, on a full time basis, who will change to work, on a part-time basis, for a definite period of time;
- In order to ensure urgent needs of functioning of public employer entities;
- Performance of an occasional and not long lasting task or determined service defined precisely;
- For the fulfilment of functions in temporary structures of public employer entities;
- To cope with exceptional increase of activity of body or service;
- For the development of projects not included in the normal activities of bodies or services;
- When the training or the obtaining of an academic degree or professional certificate, of public employees within the framework of public employer entities involves the performance of subordinate work;
- When it deals with bodies or services, on a setting up system.
In cases when the contract conclusion justification is “to ensure urgent needs of functioning of public employer entities” it shall not be formed for an unfixed temporary term.
A fixed temporary term is set to a public functions contract when the exact termination date is known. In this case the fixed term is synonymous of deadline.
The fixed temporary term contract shall last for the period agreed, and shall not exceed three years, including renewals, nor shall be renewed more than twice. The renewal of the contract is not automatic being subject to the meeting of the material requirements of its conclusion, as well as the written form. Single contract shall be deemed that which is the object of renewal.
On the other hand, an unfixed temporary term is set to a public functions contract when the exact termination date is unknown. The unfixed temporary term contract shall last for the time needed for the replacement of the absent public employee or for the completion of a task or service whose execution justifies the conclusion.
Besides the general requirements of form, the fixed or unfixed temporary term contracts shall set out the following indications:
- The justifying reason of the term stipulated - it shall be made by express mention of facts that integrate it, and a relationship between the justification invoked and the term stipulated shall be established;
- The date of the respective termination, if the contract is of a fixed temporary term basis.
In all matters that are not regulated by the General Labour Law in Public Functions, the Labour Code in which it is not incompatible with provisions set out in the referred to law is applied additionally to the fixed or unfixed term temporary employment relationship.
The rules applied to the fixed or unfixed term temporary employment relationship in public functions system shall not be excluded by collective labour regulation instrument.
When the functions related to the foreign office, security and intelligence service, criminal investigation, public security and inspection activities shall be fulfilled on a temporary basis, the system of employment contract in public functions under a fixed or unfixed temporary term is to apply with due adaptations.
The appointment assumes the form of an order which shall bear reference to legally enabling provisions and existence of appropriate budget commitment.
As a rule, tenure is formed for a fixed temporary term. In the absence of a special norm, the regulation provided for the public employment relationship of origin is to apply to the tenure and, when this one does not exist, the regulation provided for contracted employees.