Lisbon – A recent agreement between Uber and the Portuguese labor union Sindel, guaranteeing a minimum wage for delivery drivers and those operating under the “TVDE” (Transporte de Viajantes em Automóvel Descaracterizado) designation, is being hailed as a significant step forward for worker rights in Portugal’s gig economy. However, legal experts are raising concerns about the practical implementation of the agreement, specifically how “time on service” will be calculated for TVDE drivers – a crucial factor in determining eligibility for the minimum wage.
The core of the debate centers on whether the minimum wage calculation will be based solely on the time a driver is actively transporting passengers, or if it will include periods when they are logged onto the platform and available for rides, even if no fare is accepted. This distinction is critical, as the latter scenario could significantly increase the hours required to earn the minimum wage, potentially conflicting with existing legal restrictions on working hours for TVDE drivers.
Helena Braga Marques, a lawyer and coordinator of the economic transport unit at PRA – Raposo, Sá Miranda & Associados, described the memorandum as “an innovative milestone,” but emphasized the ambiguity surrounding the definition of “time on service” for TVDE drivers. “The memorandum, as it has been published, does not clarify what is understood by time on service in this specific case,” she stated. The lack of clarity, she argues, could lead to disputes and undermine the intended benefits of the agreement.
The Question of ‘Time on Service’
The Portuguese legal framework offers limited guidance on defining “time on service” in the context of gig work. Braga Marques explained that under the general Labor Code, time of availability may or may not be considered working time. For Uber drivers, this translates to the possibility that the time spent online and ready to accept rides could be counted as work hours. However, she cautioned that this isn’t automatic.
Referencing a 2008 ruling by the Portuguese Supreme Court (Acórdão do Supremo Tribunal de Justiça, November 19, 2008), Braga Marques highlighted the importance of location. If a worker is at their designated workplace and available, that time is generally considered work time. Conversely, if a worker is available but outside of the employer’s control – for example, at home – that time is typically considered rest time. “Time that a worker spends at home (or in another location of their choice), even if they can be contacted, does not count as working time,” she explained.
The situation is further complicated by specific regulations governing mobile workers, where time of availability is often *not* considered working time. A 2018 ruling by the Supreme Court (Acórdão do Tribunal Supremo de Justiça, July 17, 2018) specifically stated that availability time, as defined by Decree-Law No. 237/2007, does not constitute working time for the purposes of the Labor Code.
Occupancy Rates and Potential Overwork
The debate over how “time on service” is calculated is particularly relevant given the average occupancy rate for TVDE drivers in Portugal. According to Ivo Miguel Fernandes, president of APTAD – Associação Portuguesa de Transportadores em Automóveis Descaracterizados, drivers spend, on average, only 50% of their available time actively transporting passengers. He told Jornal Económico that drivers spend the other 50% waiting for ride requests.
If the minimum wage, based on a 40-hour work week, were calculated solely on time spent actively transporting passengers, drivers would effectively need to work 80 hours to earn the equivalent pay. This scenario raises significant legal concerns, as Portuguese law limits TVDE drivers to a maximum of 60 hours per week, with an average of no more than 48 hours over the preceding four months. Fernandes estimates that, at a 50% occupancy rate, drivers would only be paid for 24 hours of work, creating a substantial shortfall.
The agreement between Uber and Sindel represents a landmark attempt to address the precarious working conditions faced by gig economy workers in Portugal. However, the practical implications of the agreement hinge on resolving the ambiguity surrounding the definition of “time on service” and ensuring that the minimum wage guarantee does not inadvertently lead to increased workloads and potential legal violations.
What’s Next?
The coming weeks will be crucial as the details of the agreement are finalized and implemented. Further clarification from Uber and Sindel is expected regarding the methodology for calculating working hours and ensuring compliance with existing labor laws. The Portuguese government is also likely to play a role in overseeing the implementation process and addressing any potential legal challenges. The APTAD has already signaled its intention to closely monitor the situation and advocate for the rights of its members.
This evolving situation highlights the broader challenges of regulating the gig economy and ensuring fair labor practices in a rapidly changing world of work. The Portuguese case will be closely watched by labor advocates and policymakers across Europe as they grapple with similar issues.
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