Reform proposal protects partners’ assets from corporate labor debts

A labor reform proposal made at the request of the Jair Bolsonaro (PL) government limits the use of a company partner’s personal property to pay the company’s labor debts.

In addition, the study prepared by specialists suggests an alternative regime to the CLT (Consolidation of Labor Laws). The Constitution would authorize more flexible rules, to be defined by law.

The authors say that the changes could stimulate entrepreneurship, job creation and reduction of bureaucracy. Unionists reject the arguments and see precariousness.

The proposals were drawn up by the Gaet (Group of Higher Labor Studies) to support a labor reform. A union reform is also presented.

No Saturday (4), at leaf showed that among the suggestions are the release of work on Sundays and the prohibition of recognition of employment relationship between service providers and applications.

Specialists also defend, according to a report on Sunday (5), the lockout —a kind of strike by companies—, which is currently prohibited, and the reduction of the power of the Labor Court.

Today, the partner’s equity can be used to pay the company’s debt in accordance with rules set out in the more limited Civil Code, or in the more comprehensive CDC (Consumer Defense Code).

Labor magistrates, when no specific rule is provided for the case they judge, resort to general laws to support their decisions.

Under article 50 of the Civil Code, there are two situations in which the judge may invoke the so-called disregard of the legal personality — when partners or administrators are held responsible for the debts of their companies. The first of them is in case of misuse of purpose, and the second, of patrimonial confusion.

The CDC, in Article 28, presents a broader list. This list includes abuse of rights, excess of power, infringement of the law, unlawful act or act or violation of the articles of association or articles of association, in addition to bankruptcy, state of insolvency, closure or inactivity of the legal entity.

The group appointed by the Bolsonaro government recommends that the application of only the Civil Code be expressed in law, extending only to cases of irregular dissolution of a company.

Gaet states that, “for more than obvious reasons —in particular the incentive to entrepreneurship and the consequent stimulus to the creation of jobs—, it would be convenient and opportune for the same assumptions to be made. [do Código Civil] were also observed in the labor sphere for recognition of the partners’ liability for labor claims recognized in court”.

“It so happens that there is a broader legal provision, portrayed by the minor theory of disregard of the legal personality [CDC], which recognizes the responsibility of the partners regardless of the demonstration of any requirements, the mere default of the legal entity being sufficient for the magistrate to reach their assets”, they justify.

Experts say that today, “in labor doctrine and jurisprudence, bearing in mind partially common points of contact and principle between labor law and consumer law, the thesis of application of the minor theory has prevailed. [o CDC]”.

Legal advisor to the CUT (Single Workers Center), lawyer José Eymard Loguercio criticizes the proposal. “Gaet makes it difficult to disregard the legal personality”, he says.

“In a little while, this will also reach the consumer. Everything that was gained from rights and guarantees begins to be understood only as a cost. The social cost may be much higher,” says Loguercio.

For the president of the CUT, Sérgio Nobre, it is about the “legalization of fraud”. “Today, 90% of workers’ actions that go to court are because severance pay is not paid correctly.”

As for Miguel Torres, president of Força Sindical, the proposals of the Gaet lack measures to guarantee the payment of indemnities to the workers.

“In this moment of crisis, companies are left without the support to pay their labor debts, since many owners transfer the company’s assets to their personal assets”, says Torres.

A member of the Gaet and minister of the TST (Superior Labor Court), Alexandre Agra Belmonte says, however, that the rules of consumer law are not the most adequate.

“The CDC is not justified in labor relations. It has to pacify [a jurisprudência]”, he says. “Excess of economic power is not justified in a work relationship, but it is justified in a consumer relationship, even for the purposes of competition.”

For this, it is proposed the inclusion of an article in the CLT, the 449-A. It makes express reference to the rules of civil law, in addition to the hypothesis of irregular dissolution of the company.

The Ministry of Labor and Social Security, in the document, says that the measures presented do not represent the government’s position. The folder also claims that it will act in dialogue with society.

According to Belmonte, there are already legal instruments that guarantee the payment of labor debts. The minister cites the bankruptcy and judicial reorganization law that already privileges them.

Guilherme Feliciano, professor of labor law at USP and former president of Anamatra (National Association of Labor Justice Magistrates), disagrees.

“Sometimes bankruptcy reaches the partner, sometimes it doesn’t. This is a hypothesis that today requires the text of the Consumer Defense Code to pay labor credit”, he says.

Proposal provides for alternative regime to CLT

Another point of the proposal that is rejected by Feliciano is the alternative regimes to the CLT. The group of specialists defends this possibility, “provided that all workers’ rights enshrined in article 7 of the Federal Constitution are respected”.

According to the presentation of the report, made by the Ministry of Labor and Social Security, the proposal deals with “a new, simpler and less bureaucratic labor regime”.

The change, in this case, would be made through the PEC (proposal to amend the Constitution), with an amendment to Article 7 itself. The provision would provide for a “simplified labor regime, optional for the worker, with rights and obligations defined in a specific law”, as an employee’s right.

“This allows the worker to have a voice in establishing the rules that will govern his own life and to be the judge of what is best for him in each concrete situation, observing the constitutional limits”, they write, in the explanatory memorandum , the specialists led by Minister Ives Gandra da Silva Martins Filho, former president of the TST.

“This type of option is naive, to say the least. In practice, the employer will offer jobs with fewer rights,” says Feliciano.

According to the professor, despite the measure being included in a PEC suggestion, the Constitution must guarantee equality. “The Constitution cannot create a subclass of employees.”

According to Feliciano, the change opens the way to rescue the government’s proposal for a Green and Yellow Card, which provided for fewer rights and has already been frustrated in Congress.

“The great discussion of the green and yellow contract was its constitutionality in relation to Article 7. They will then put this regime in Article 7 to be included in the Constitution”, he says. “It’s the most serious part.”

MAIN PROPOSALS

• Limit the cases in which the assets of a partner can be executed for payment of a labor debt to three situations: misuse of purpose, equity confusion and irregular dissolution of the company
• Authorization in the Constitution for the creation of a simplified labor regime, alternative to the CLT, to be defined by law

MORE LABOR CHANGES

• 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 the worker’s 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 replacement 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 INSS benefits 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

UNION REFORM PROPOSAL

• 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)
• ​Free union organization in any degree or scope of representation, with no mandatory link to economic activities, occupations, trades, professions and territorial bases (today only a single union can be used on a territorial basis, and the minimum base is the municipality)
• The most representative professional union engages in collective bargaining in the interest of all employees in the negotiation unit, and may admit the joint action of the least representative
• Non-members have the right to participate and vote in meetings relating to collective bargaining
• Employer unions represent only members and may admit non-members in collective bargaining
• The imposition of contributions of any kind to non-members is prohibited.
• It can charge business contributions from members or not to fund collective bargaining; value is defined at the general meeting of the most representative union and cannot exceed the annual value of the membership contribution
• The right to join one or more unions guaranteed
• End of the normative power of the Labor Court, prohibiting magistrates from stipulating social and economic clauses