Social protection or social security shall constitute a right of all citizens pursuant to the Constitution of the Portuguese Republic, materialized by the social security system which general bases, principles, objectives and structure are set by the social security basic law.
Social security aims at ensuring a set of decent and dignified life conditions to persons, namely in certain social risk situations, referred to as eventualities.
Historically, a special scheme has been applied to public administration employees that have been called as “public administration social protection scheme”, whose autonomy has been maintained by successive social security basic laws. On the other hand, such laws have always established the obligation of its convergence with system schemes, namely with the employed persons’ social security general scheme.
The fact of this special scheme has been created exclusively for civil service public employees and in a way intrinsically linked to the employment relationship that was underlying to it which is also special in relation to the general labour law, has determined its more relevant characteristic that has been translated in an employment relationship and in a social security relationship established between the employee (scheme’s beneficiary) and a same entity that is simultaneously its “employer” and its “social security entity” (in other words public administration public services). One same entity (the employer) that has to assume responsibilities inherent to the employment relationship and to the social security/social protection relationship as opposed to the general scheme in which those relationships and responsibilities are distinct.
Hence, it has resulted (and in some cases still results) that at regulatory level there has been no distinction between the two competencies’ areas; therefore concepts so important as cash benefits paid for the work performed, compensation and social benefits substitutive of work income, whenever this one is not performed, are often confused in such a way as to provide to the latter with the same specific legal treatment of the former.
Therefore, an extremely confusing, unbalanced, incoherent legal framework has been created, with a significant lack of transparency regarding the right which shall be ensured to public administration employees in this so relevant area of fundamental social rights.
The 2009 law establishes for the first time, effective from 1 January of same year the social protection for all employees fulfilling public functions, in an overall, effective and integrated manner, taking into account the compliance with acquired rights and future ones and the legal imperative of the scheme convergence materialization.
So, a convergent social protection scheme (CSPS) is created. It is a closed scheme covering only the employees who entered in public administration until 31 December 2005 and who were subject to “civil service social protection scheme”, alias, registered to the Public Employees’ Special Pension Scheme (Caixa Geral de Aposentações in portuguese).
On the other hand, progressive integration in the social security general scheme (SSGS) shall be promoted of employees in public functions being therein compulsorily framed those who started their professional activity in public administration as from 1 January 2006 as well as those who have been previously registered as beneficiaries for all eventualities in such scheme.
The convergence materialization with SSGS, namely in relation to “rules of rights formation and benefits grant” shall entail progressive change of all CSPS regulation, by introducing a distinction between labour law and social security/social protection areas and the different responsibilities and competencies resulting from each one. It shall also entail changes in labour regulation insofar as opposed to the preceding scheme, the compensation is no longer maintained during the absence to work periods due to the occurrence of eventualities covered by social security, being the corresponding social benefit of a proper legal nature granted, so replacing the lost income.
The employment contract in public functions, created as regime rule for public administration employees made the social protection scheme clarification need more pressing from a convergence perspective with the SSGS as the public employment relationship, careers and compensation law already introduces the separation of the labour and social protection areas. This separation is maintained and becomes reinforced with the current General Labour Law in Public Functions.
The CSPS organization keeps, in the main that of the former “public administration social protection scheme”, that is to say, continues to be the employer (public services) to assume responsibilities and competencies of social protection right materialization. On the other hand, the Public Employees Special Pension Scheme (CGA in portuguese) shall be responsible for the pensions’ management. The CSPS law defines such responsibilities and competencies in a clear and unambiguous manner.
The convergent social protection scheme financing system although shall also abide by the principles and basic rules of the social security general scheme maintains in this matter former characteristics, namely the payment of contributions for three eventualities –disability, old age and death – shall be the responsibility of the CGA,IP, and the charge of the remaining – illness, maternity, paternity, and adoption (parenthood), unemployment, accidents at work and occupational diseases shall be incumbent directly upon employer entities. The right to benefits corresponding to the latter eventualities shall not, therefore, depend on contributions. Nevertheless, such circumstance shall not mischaracterize the contribution nature of the CSPS, insofar as the law equalizes the fulfilment of functions to the contribution period. .
Eventualities covered by the CSPS are the same of the SSGS, of the Social Security Welfare System. So far only the maternity, paternity and adoption (parenthood) eventuality is fully regulated in convergence with the social security general.
Finally, also as from 1 January 2009 distinction between social benefits, stemming from the employment relationship – health sub-systems, complementary social action and others – and social protection has been made.