INSS mandatory, but without CLT; plans for work by app

The app issues a notification, notifying you that there is a race in the region. Alongside a motorbike or bicycle, a delivery man prepares for the journey. Formally, this worker is not an employee of the company that requested the ride — most of the time, a restaurant —, nor of the application he used to make himself available.

This situation of informality gained more attention from 2020, with the beginning of the pandemic, and after the demonstrations called “Breque dos Apps”, in July of the same year, and generated a wave of proposals that try to give some security to these workers. .

According to research by Cepi (Center for Teaching and Research in Innovation) at FGV Direito, at least 128 bills dealing with work through digital platforms were presented in the Chamber and Senate until July 2021.

It also began to gain ground in this year’s electoral debate. As shown in the Panel column, the PT defined the issue as a priority for Lula’s government program.

In recent weeks, the subject has taken up space again in the discussion groups of couriers and drivers, after a proposal that provides for the mandatory contribution to the INSS (National Social Security Institute) circulated among them.

The discounts would be retained by the applications and calculated as a percentage of monthly earnings.

Companies would also have to pay part of this contribution. Adding the payments, application workers would have a pension contribution rate of 11%, the same rate that exists today for the self-employed.

Those who follow the negotiations in Congress and the conversations on the subject in the government also have the expectation that the Ministry of Labor and Welfare will submit a project to regulate these activities.

The folder confirms that a government working group is analyzing the issue. The text that circulated among the couriers was being negotiated at the Mixed Parliamentary Front for Digital Economy.

In common, the two proposals under discussion seek to contain the obligation of classification via CLT (Consolidation of Labor Laws).

In one of the articles, the proposal says that the relationship between service providers and the technological platform will not be that of “employee quality” provided for in the labor law.

If the text advances and becomes law, the driver and delivery person who use the apps to work would have a monthly discount. The calculation of this rebate would be based on the gross amount billed by workers. For drivers, the basis for calculating the contribution to the INSS would be equivalent to 20% of the billing; in the case of couriers, it would be 50%.

According to Deputy Rodrigo Coelho (Podes-SC), general coordinator of the Digital Front, the debate on how to ensure greater safety for workers who work through apps has grown especially since the bill that resulted in Law 14,297 was passed.

It was through it that companies were forced to take out insurance for accidents and to pay financial assistance in case of removal due to contamination by Covid-19. This law, however, deals with the protection of delivery people during the pandemic. When the state of public health emergency is revoked by the government, it will also expire.

Currently, the formalization initiative depends on each delivery person and driver, available only through the MEI (individual microentrepreneur). The cost is BRL 65.60 per month (the contribution is equivalent to 5% of the minimum wage plus BRL 5 referring to the ISS, which is the municipal tax) and must be paid by the worker himself.

Social security protection, which entitles you to sick pay, for example, only starts after 12 contributions.

For Coelho, the MEI is bureaucratic, which ends up favoring payment defaults, in addition to being a fixed cost for a variable income activity. “It is essential that the platforms also start to contribute, for the accounts to close.”

Although the two main platforms — iFood and Uber — publicly defend the inclusion of drivers and delivery people in the social and pension protection network, they want to ensure that these workers are not considered their employees, with the package of rights and obligations that this relationship implies. : in addition to the contribution to the INSS, a formal contract, payments to the FGTS, and responsibility for the activity.

The formal contract is also not unanimous among couriers and employers. Even groups that advocate regulation, such as Amabr (Association of Applications and Self-Employed Motofretistas of Brazil), do not see the framework via CLT as the best option. “It’s old medicine for new pain,” he told sheet Edgar Francisco da Silva, the Gringo, president of the entity.

In the Labor Court, there is still no established jurisprudence on the existence or not of an employment relationship. In the 3rd Class, an action against Uber already has a majority of votes for the classification of drivers as employees of the company. In the 4th and 5th classes, requests for drivers had been denied.

With the divergence, the judicial discussion on the matter should be taken to Subsection 1 Specialized in Individual Disputes to standardize the understanding in the Labor Court. At the end of last year, the Public Ministry of Labor filed public civil actions against the main applications.