The decree published on Thursday (11) by President Jair Bolsonaro (without a party) that has shrunk labor standards determines that the inspection activity of employment relations is exclusive to tax auditors linked to the Ministry of Labor and Welfare.
Attorneys of the MPT (Ministry of Labor), which also have this role, reacted to the measure and are considering taking the issue to court.
The text states that “it falls exclusively to the labor inspectors of the Ministry of Labor and Social Security […] inspection of compliance with labor protection and occupational health and safety standards”.
It also gives these professionals the title of national labor inspection authority.
The prosecutors claim that the exclusivity sought by the Executive has no legal support and can generate legal uncertainty for the activities of the Public Ministry and other authorities that participate in labor inspection, such as the Federal Police and the Fire Department.
In a note, the Ministry of Labor cited article 626 of the CLT (Consolidation of Labor Laws), which says that “it is incumbent upon the competent authorities of the Ministry of Labor, or those exercising delegated functions, to inspect the faithful compliance with the protection rules to work”.
“Thus, therefore, the normative consolidation brings legal security to those administered about the competence to inspect the work, carried out by employees who are part of the tax auditor’s career,” said the folder.
The prosecutors, on the other hand, recall that the Bolsonaro government has already tried to institute exclusivity through the provisional measure of the mini-labor reform, which ended up being overthrown by the Senate, and is now trying to achieve the objective via decree.
The ANPT (National Association of Labor Attorneys) stated in a technical note at the time of the MP’s discussion that, if such provision were approved by Congress, operations to combat slave labor, for example, would only occur after planning and organizing the Ministry of Labor — with no possibility of initiative from other bodies or institutions such as the Public Ministry.
In the case of the decree, there are doubts about the real legal impact for the Public Ministry. Even so, the view expressed by the entities is that the text generates legal uncertainty and, therefore, legal measures may be necessary.
When contacted, the ANPT stated that it will contest the government’s decree. “The ANPT is going to analyze the appropriate means of opposition, including judicial ones, if necessary,” said the organization, in a statement.
MPT’s technical note signed by a group of attorneys at the time of the MP assessed that the exclusivity sought by the Executive violates the attributions of bodies such as the Public Ministry.
According to the text, the institution “has investigative powers directly conferred by the Constitution”, including the prerogative to “carry out inspections and investigative measures”.
The prosecutors specifically cite Article 8 of Complementary Law 75/93, which gives the Public Ministry the right to “carry out inspections and investigative measures”.
They also cite Article 129 of the Constitution, which states that the Public Ministry’s institutional function is to “request investigative steps”.
Italvar Medina, labor attorney and deputy national coordinator for the eradication of slave labor at the MPT, stated that the decree could compromise inspection.
“It generates legal uncertainty in the citizen and can inflate employers who break the law against the bodies they oversee. It does not bring any benefit to the population,” he said.
For Medina, the new standard cannot reach the Public Ministry, but it may cause doubts. “The decree brings exclusivity without any basis, being illegal and ineffective at this point. There is a risk of it misleading the population and the employer,” he said.
The professor of labor law at FGV-SP Olivia Pasqualeto said she believes that the decree leaves the MPT aside, “which plays a very important role in relation to health and safety at work, the most fundamental rights at work, especially in the context of a pandemic”.
Wanted, government sources dispute the concerns on two fronts. On the one hand, it is said that the decree has no power to withdraw powers from the Public Ministry. On the other hand, they claim that the Constitution and legislation confer the power of inspection on the Union. Therefore, the decree would not bring innovations.
In the note, the Ministry of Labor and Social Security reinforced that the normative provision only ratifies what the Constitution already determines, which states “that it is the Union’s responsibility to organize, maintain and carry out labor inspection”.
Amidst the differences, Luiz Colussi, president of Anamatra (National Association of Labor Magistrates), stated that the organization is yet to evaluate the decree.
However, the magistrate said that there seems to have been “extrapolation” of the government and that there is a risk that magistrates will not follow the text in their decisions because they may observe unconstitutionality.
“It can generate legal uncertainty. And it is contradictory, because one of the foundations of the new decree is precisely to bring legal certainty. And this point is contradictory, insecure,” said Colussi.
“Let’s do an examination to see if there is an extrapolation of the regulatory power of the ministry and an invasion [por parte do governo] the competence of Congress to legislate on labor law,” he stated.
This week’s government text revokes 34 labor decrees and replaces it with one with 18 chapters that, in large part, compiles previous norms on topics such as occupational safety and health, conflict mediation, temporary work, transport vouchers and food stamps .
According to the Ministry of Labor, the revoked rules were no longer valid, such as those dealing with domestic servants (there is a law regulating the profession, from 2015).
In the section on food stamps, the decree brings innovations such as the possibility for the worker to ask the employer for the free portability of resources from one payment provider to another. In addition, the text provides that payment operators allow the sharing of their accredited network for transactions of other brands.​
Main points of the labor decree
- Creates a permanent program for the simplification of infra-legal labor standards, which will have as guidelines both the valorization of work and the search for full employment in the country
- Compiles inspection, protection, safety and health at work standards
- Brings rules on certification of personal protective equipment
- It gathers rules on electronic day registration, mediation of collective labor disputes, temporary work and Christmas bonus
- Brings rules on transport and food stamps
- Compiles rules on weekly paid rest and salary payment on civil and religious holidays, provided for in previous decrees​
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