TST class forms majority to recognize link between Uber and driver

Two of the three ministers of the 3rd Panel of the TST (Superior Labor Court) voted in favor of recognizing an employment relationship between a driver and Uber. The judgment has not yet been finalized, as Minister Alexandre Agra Belmonte asked for more time to vote.

Uber says, in a note, that it will await the final vote and that it considers the understanding of the 3rd Panel to be isolated.

This is the first decision of a TST class in favor of the recognition of employment relationship. The court has eight classes in all. In the 4th and 5th class, requests from drivers had been denied.​

When the judgment resumed on Wednesday (15) is concluded, the case should be taken to Subsection I Specialized in Individual Dissidents, to standardize the understanding in the Labor Court.

Attorney Solon Cunha, who represented Uber at the trial, argued that drivers only use the platform to work. In defense of the application, the possibility of drivers having the freedom to set their own hours and even being able to turn off the platform when they do not want to work eliminates an important characteristic of the employment relationship, such as subordination.

For the appeal’s rapporteur, Minister Maurício Godinho, the control that Uber exercises over the provision of services is deeper than those provided for by the CLT (Consolidation of Labor Laws).

In Wednesday’s session (15), he said that while traveling salespeople act out of control of their employers, drivers using Uber are permanently monitored through the algorithms. In addition, said the minister, there is the possibility of customers contacting the platform to complain about the service.

For the reporter, this control indicates the existence of subordination.

Minister Alberto Bresciani –who leaves the TST and retires next week– followed the rapporteur and voted for the recognition of the link. Quoting excerpts from his vote, Bresciani stated that the European Union Justice has already decided that Uber is a transport company, and that countries like England, France, Switzerland and Italy have been deciding on the existence of a link.

Bresciani also said that flexible hours do not mean autonomy in the exercise of work. Personality, one of the requirements provided for in the CLT for recognition of the employment relationship, is present, according to him, in the need for the driver to open an account in the application and provide his/her personal data.

Although the trial is not over, the understanding can no longer be changed. Ricardo Calcini, professor of labor law, says that the decision of the 3rd class, as two votes in favor of the employment bond thesis, should be upheld. The retirement of Minister Bresciani, who was the reviewer on the appeal, will have no effect on the result.

In a statement, Uber says that the evidence produced in the process was disregarded. “The ministers based their decisions exclusively on ideological conceptions about Uber’s operating model and on the activity carried out by partner drivers in Brazil,” he says.

“The ministers made a presentation citing themes related to humanist constitutionalism, cinematographic films about the digitization of society and the restructuring of the capitalist system, but little space was devoted to concrete evidence of the process, such as the fact that the driver himself acknowledged, in testimony to the Justice, who did not receive any kind of order, nor did he have any kind of supervision, in the 57 days he used the Uber application until he was unsubscribed for violating the platform’s Terms of Use.”

In early November, the MPT (Public Ministry of Labor) filed lawsuits against companies Uber, 99, Rappi and Lalamove, requesting that the courts recognize employment relationships with drivers and deliverymen — motoboys and cyclists.

Labor prosecutors say they have filed 625 proceedings against 14 app companies: Uber (230), iFood (94), Rappi (93), 99 Technology (79), Loggi (50), Cabify (24), Screw (14) , Shippify (12), Wappa (9), , Lalamove (6), Ixia (4), Project A TI (4), Delivery (4) and Levoo (2).

They ask, in the actions, for the recognition of the relationship between workers and digital platforms, with the guarantee of social labor, insurance and social security rights.