The prohibition on contracting outsourcing services to meet the needs of workers whose jobs have been subject to collective dismissal and job elimination, as foreseen in the Agenda for Decent Work, was adopted in Law No. 13/2023, of April 3, which amends the Labor Code. The system of fundamental rights enshrined in the Constitution often reflects a permanent and intrinsic conflict: the realization of some rights often implies the restriction of other rights, also considered essential. In the labor field, this tension has its own vitality, and the conflict with other subjective positions is permanent, particularly with regard to economic realities.
In the relationship between employer and employee, there is no conflict of rights, but rather the recognition of intrinsic limits to the employer's own freedom to negotiate, thus understanding the primacy of labor law as a set of protective norms. But even if one were to consider that there is a conflict of rights between job security and freedom of economic initiative, Article 338-A of the Labor Code is not unconstitutional insofar as it does not place its recipients "in a quantitatively or qualitatively unreasonable situation in light of the dictates of the protection of individual freedom and autonomy," and the means to ensure said job security is not "excessive, too serious or unfair.".
Author: Filipe Lamelas
