The three employees' complaint was filed at the end of last September and the Luxembourg Labour Court reached the same verdict last 25 June in three separate rulings, the content of which is broadly similar, only differing in the amounts of updates, interest and compensation assessed to be paid to the employees.
The first instance decision of the Luxembourg justice concerns the updates understood to be due by the employees between August 2017 and September 2020, the month in which the complaint was filed, and the Portuguese State has 15 days to comply with it, if it does not appeal, under penalty of incurring a fine of 30 euros per day from the expiry of this period.
Contacted by Lusa, the Portuguese ambassador in Luxembourg, António Gamito, confirmed the sentence. "The State was convicted in the first instance. The Legal Affairs department of the Ministry of Foreign Affairs (MNE) is analysing the sentence. I am awaiting instructions on the way forward."
"These officials have employment contracts in public functions. This means that they are Portuguese civil servants. But in certain matters, for example with regard to holidays, local law applies. There are things that the state accepts that local law applies. And there are others where there is divergence and [it believes that] local law is not applicable. And one of the divergences is exactly this: the indexation of salaries", summarised the ambassador.
Under Luxembourg law, the employer is obliged to pay wage updates for indexation to inflation, risking a fine of up to 25,000 Euros if they fail to do so, which increases to double in case of a repeat offence within two years, under Article 223 of the Luxembourg Labour Law Code.
Portugal considers that it does not have to make such an update, that Portuguese law, which differs from Luxembourg law in several respects, applies to the contracts of these employees. For example, these workers receive holiday pay, Christmas bonuses and meal allowances, which is not the case with Luxembourg civil servants, arguments that were put forward by the Portuguese state's defence and which are recognised in the body of the submission from the Luxembourg court.
Eduardo Dias, a member of the Luxembourgian trade union OGB-L, which accompanied and supported the three embassy workers, told Lusa last January that the Portuguese State's interpretation is understood in the case of Portuguese public administration employees on mission, but not in the case of "locally hired workers", as is the case of these three employees, but also others currently at the service of the Portuguese diplomatic services in Luxembourg.
For these, the trade unionist told Lusa news agency, the law to be applied should be Luxembourg's and, therefore, the workers are entitled to see their salaries updated by inflation.
In 2018, Foreign Affairs Minister Augusto Santos Silva denied that the Portuguese state is violating Luxembourg labour law in the case of consular workers who have not received the updates provided for in Luxembourg's Labour Code.
"The guideline we follow is to update the salaries of our employees in accordance with Portuguese law," the minister told Lusa.
Santos Silva added at the time that, "in various legal systems, it is [also] imperative to comply with national labour legislation, and we comply with those imperatives."
A 2018 opinion from the MFA's legal department regarding this issue has already argued that the Luxembourg rule providing for salary updating, aimed at adapting salaries to the evolution of the cost of living, is not imperative.
"There is no legal framework for the salary update, in the same percentage value that was established for Luxembourg citizens, since, on the one hand, such update was not authorised by the competent members of the Government and, on the other hand, it does not appear that such update falls within the set of imperative norms of public order," said the opinion of the MFA's legal services, to which Lusa had access at the time.
Portuguese state ordered to pay salary updates to embassy staff in Luxembourg
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