New labor reform proposal frees up Sundays and bans CLT app drivers

A study commissioned by the Jair Bolsonaro government to subsidize a new labor reform proposes, among other measures, working on Sundays and prohibiting the recognition of employment relationships between service providers and applications.

The suggestions for a series of changes in the CLT (Consolidation of Labor Laws) and in the Constitution were drawn up by a group established by the Ministry of Labor and Social Security. The text has already been completed and is under evaluation.

There are at least 330 changes in legal provisions. There is the inclusion of 110 rules —among articles, paragraphs, subsections and sub-items—, 180 of them were amended and 40 of them were revoked.

If the change in relation to Sundays is approved, a worker may have the right to take time off on that day only once every two months — the measure had already been dealt with in the proceedings of the MP that gave rise to the Economic Freedom Law.

​The experts proposta proposal alters article 67 of the CLT and says that “there is no prohibition to work on Sundays, as long as the employee has at least one day off every 7 (seven) weeks on that day”.

In justifying the change, experts said that “currently one of the biggest challenges facing the world is unemployment”.

“Today, to work on Sundays and holidays, it is necessary: ​​to be on the list of activities authorized by the Special Department of Labor [convertida em ministério], or have authorization from a union entity, through a convention or collective agreement.” The suggestion foresees an individual agreement.

The measure, according to the report, could bring benefits to employment levels.

The set of proposals consists of reports presented by the ministry, on Monday (29), to the National Labor Council. The text brings together contributions from magistrates, lawyers, economists and academics.

The study aims to “fine tune the 2017 labor reform”. For this, there are suggestions about intermittent work, correction by the IPCA-E (Special Extended Consumer Price Index) and compensation for moral damages.

The Gaet (Group for Higher Labor Studies) was created in 2019. The works were organized into four committees with thematic axes.

The 262-page document was published in November this year. Unbinding from the application worker is covered in three chapters.

The group led by Minister Ives Gandra da Silva Martins Filho, former president of the TST (Superior Labor Court), includes the most profound changes.

According to the text, article 3 of the CLT must expressly state that “the work performed between a worker and shared economy computer applications does not constitute an employment relationship”.

Passenger drivers and food delivery personnel could not be considered platform employees. Thus, they would not have rights provided for in the CLT. Today, there are conflicting court decisions.

According to the explanatory memorandum, “such provision seeks to reduce legal uncertainty on the subject, in addition to exemplifying hypotheses of effective subordination, to overcome the legal discussion currently in vogue”.

In the document, the ministry says that the proposals do not represent the government’s opinion. “In other words, the reports of the Thematic Study Groups are the sole and entire responsibility of the authors.”

Sought out, the folder reproduced this reservation that is in the material. And he adds: “Thus, the document also states that ‘the role of the federal government will be based on and built through dialogue with society, its representation in Parliament and the economic and social needs of the country'”.

According to the folder, “the position of dialogue and construction is the one that guides the government at the present time.”

Recent economic phenomena, applications such as Uber, 99, iFood, have faced legal challenges regarding employment relationships. In the proposal, the theme was addressed in two more articles of the CLT, 442 and 442-B.

The freedom of association group, coordinated by FEA-USP professor Hélio Zylberstajn, stated that the case is based on “a simple, arithmetic and, therefore, objective criterion”.

“It is enough to count the number of parties involved in the work on demand to conclude that it is a two-dimensional, three-dimensional or even broader relationship.”

According to the commission, “the advantage is clear”. “If there are more than two parties to work on demand, it can be safely concluded that there is no employment or subordination relationship and our CLT set of rules does not apply.”

This group proposes: “The use, in a network of economic operations, of a worker who, voluntarily, independently, self-managed, occasional or continuous, participates in transactions between more than one network participant, whether individuals or legal entities”.

Present at the council meeting as the legal advisor of the CUT (Single Workers Center), lawyer José Eymard Loguercio says that no proposal for bills was presented with the aim of guaranteeing protection to these workers.

According to him, the authors of the report claim that the issue is already being debated in Congress.

“There is no measure of protection for the worker. All legal security is for the company and for the market”, says Loguercio, referring to the title of Gandra’s commission, “Labor Law and Legal Security”.

The proposal of social protection for these workers was debated, but did not advance in the group.

A member of the commission and judge of the TRT-21 (Regional Labor Court of Rio Grande do Norte), Bento Herculano Duarte Neto says that he is personally in favor of a minimum network of rights.

“The ideal is to say that there is no employment relationship because there is no subordination, but there must be some social security protection, because he is the famous invisible worker, in addition to limiting work hours and having a minimum level of financial compensation”, says Duarte Neto.

Gandra, on the other hand, claims that the proposal that seeks to avoid judicialization prevailed. “The matter is still so controversial in Brazil and in the world that we wanted to make it clear that there is no employment relationship. If you become an employer, the platform ceases to exist, it is of no interest,” he says.

“If there is no link, there is nothing to say. What right will you have? Now, if you have health problems, you can now join Social Security as an individual contributor, but you can make this clearer”, he says.

The labor economics group, coordinated by Ricardo Paes de Barros, follows this line and suggests that workers could qualify as MEI (Individual Micro-entrepreneur), which makes, for example, the contribution to Social Security mandatory.

There is no deadline for the text evaluation to be concluded and the proposals presented.

Main points of the proposals

• Not recognizing employment relationships between service providers (drivers and delivery people, for example) and digital platforms (applications). The idea is to bar court decisions that recognize the bond and rights provided for in the CLT
• Release work on Sundays for all categories

• Employee responsibility, when trained and equipped, for the lack of use of personal protective equipment in the event of an accident at work

• Pregnancy test forecast before female worker dismissal. The idea is to guarantee employment and not consider the termination of a contract for a fixed period, experience, temporary or intermittent to be considered arbitrary
• Adjustments to intermittent work rules

• Limitation of so-called procedural substitution to union members

• Discharge of an extrajudicial agreement would be complete, and the judge, prohibited from partially ratifying it

• Compensation for pain and suffering with the ceiling of the benefits of the General Social Security System as a parameter, instead of the worker’s salary, as provided for in the 2017 reform

• Application of the IPCA-E (inflation index measured by the IBGE) instead of the TR, as provided for in the 2017 reform, or the Selic in monetary correction of labor credits
• Application of new labor laws to existing contracts in order to avoid questions such as those made in relation to the 2017 reform
• Broad freedom of association, proposed through PEC (proposed amendment to the Constitution)
• Discard as mandatory the use of the concepts of categories and confederative system for the conceptualization of unions
• Admit unions by company or productive sector (the concepts of categories and confederative system can be maintained)