Types of Employment Contract
An employment contract is the agreement by which a person undertakes to provide his intellectual or manual activity to another person, under the authority and direction of the latter, in exchange for remuneration, in accordance with article 26.1 of the Labor Code (hereinafter simply CL), in conjunction with article 1149 of the Civil Code.
As a rule, the employment contract is not subject to the observance of any formalities (consensual principle).
Freedom of form prevails, and the validity of the contract has no specific form (verbal, written, adhesion).
The consensual/non-formal nature is admissible given the need for mobility and flexibility of the subordinate employment relationship, except when the law expressly determines otherwise.
Due to the mobility and flexibility of the employment relationship, only in certain circumstances in which conclusive proof of the content of the contract is required, i.e. when an employee’s guarantee is at stake, does the law impose the observance of certain formalities, such as the requirement that certain types of contracts be in writing – term contracts – must necessarily be in writing, otherwise the term will be null and void and the contract will be valid as an employment contract of indefinite duration
Furthermore, the employment contract entered into with a minor always requires written form, under penalty of nullity.
In the same sense, the employment contract concluded with a foreigner and the maritime employment contract are subject to written form.
In other cases, the law only imposes the reduction of certain clauses in writing, under penalty of nullity. Ex: the clause by which the parties intend to subject a contract to a suspensive condition.
It can be considered that the labor law provides for 3 types of contracts due to the time:
FIXED-TERM EMPLOYMENT CONTRACT
FIXED-TERM EMPLOYMENT CONTRACT In relation to the fixed-term employment contract, the principle of typicality applies, i.e. it can only be concluded in the following situations:
- Occasional work of short duration;
- The replacement of a worker with the right to reserve a job, prevented for reasons of illness, completion of military service, vacation or other reasons justifying the temporary absence of the worker;
- The performance of a specific work or service, functions or tasks of a temporary nature, namely, in seasonal activities or in those in which, objectively, there are periodic fluctuations in the number of workers;
- The replacement of a worker who had been performing functions in the company and who has left his post without prior notice or with notice of less than six months;
- The creation of new companies or new jobs.
The fixed-term employment contract must mention the stipulated period, as well as the justification for it, under penalty of being considered without a deadline.
In no case, the fixed-term contract lasts for more than 5 years, including the respective extensions.
With the end of the contract as a result of the expiry of the initial or extended period, the worker is entitled to compensation.
UNCERTAIN TERM EMPLOYMENT AGREEMENT
Like the fixed-term employment contract, the uncertain term employment contract is governed by the principle of typicality, i.e. it can only be concluded in the following situations:
- The direct or indirect replacement of a worker who is absent or who, for any reason, is temporarily unable to provide service;
- The direct or indirect replacement of a worker in relation to whom an action to assess the lawfulness of the dismissal is pending in court;
- The direct or indirect replacement of a worker on leave without pay;
- Seasonal activities or other activities whose annual production cycle presents irregularities arising from the structural nature of the respective market;
- Execution of an occasional task or a precisely defined and non-durable determined service;
- Exceptional increase in company activity;
- Execution of a work, project or other defined and temporary activity, including the execution, direction and supervision of civil construction works, public works, industrial assembly and repairs, on a contract basis or under direct administration, including the respective projects and other activities complementary control and monitoring;
- The satisfaction of the company’s temporary need.
An uncertain term employment contract of considered to be converted into an uncertain contract when the worker who remains in the performance of his activity after 15 days have elapsed since the conclusion of the activity, service, work or project for which he has been engaged or the return of the replaced worker or the termination of his contract. With the end of the uncertain term employment contract, the worker is entitled to compensation.
With the end of the uncertain term employment contract, the worker is entitled to compensation.
EMPLOYMENT CONTRACT WITHOUT TERM
The employment contract without term, also known as an employment contract for an indefinite period of time, is characterised by not having a fixed duration, containing only the starting date.
For legal purposes, the verbal employment contract is considered na employment contract without term.
With the end of the Employment Contract without term, the worker is entitled to compensation.
The employment contract is the most important instrument of the employment relationship, so it is necessary to know it well.