It has long been debate in Portugal about the possibility or not for a boss to have an authorization to make a cut in the salary of workers who usually make the famous ‘pauses for cigarettes’. One of the latest discussions about this issue came in 2020 after Galp Energia Spain announced that it would discount the breaks of its employees, including the breaks for coffee, breakfast and to smoke a cigarette.
With regard to breaks, the Portuguese Labor Code shows that workers are entitled to a break after five consecutive hours of work, or six hours when the working period exceeds 10 hours.
The only mandatory exception, besides this pause, is the 11 -hour rest between two consecutive days of work.
Smoking breaks do not arise in Portuguese legislation
In any case, Portuguese law does not cover breaks to drink a coffee or smoke a cigarette, which can make companies interpret these breaks in different ways. In 2020, the lawyer, Lúcia Gomes, advanced in statements to what pause in Portuguese workplace “is so common that no one has ever remembered to legislate.”
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Use is a source of law
It is also known that these pauses are usually not even foreseen in their own employment contracts. “However, if it is a use of the company, it becomes a worker’s right and the breaks cannot be discounted from the salary,” the lawyer stresses the same source. This is because “in Portugal use is a source of law”.
This means that if it is usual that workers in a company are pauses to smoke and they have never been discounted at the time of service, they may claim that it is a common practice and the company will not be able to penalize its employees. Even without law, if a practice is widely followed over time, it can be considered an integral part of the employment contract.
The example of Caixa Geral de Depósitos
The lawyer makes a parallel with a decision of the Supreme Court, which forced Caixa Geral de Depósitos to return the meal allowance to its workers during the month of vacation.
This case involved the change of a longtime practice, which resulted in a favorable decision to workers. “The Supreme considered that the meal allowance, although not mandatory during the holidays, was part of the usual remuneration,” he recalls.
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