Recently, the Federal Supreme Court upheld the labor reform in the part that it validated: 1) outsourcing as a way of contracting work, in a broad sense, whether for middle or end activities; 2) the freedom of negotiation between workers and unions, under the brocade of negotiated over legislated; and 3) the possibility of creating assistance contributions payable by workers, whether unionized or not, to support union negotiations.
In opposition to this latest assistance contribution, the House Committee on Economic Affairs approved a bill that prohibits union contribution requirements for non-unionized members of economic and professional categories.
Based on all the discussions about the work relationship and the employment relationship (http://intra.advonline.com.br/rm_intranet/Noticias/o_esfacelamento_das_relações_do_trabalho_e_do_emprego.pdf), it would be important to discuss the reality of Brazilian labor legislation.
To this end, we bring you some data published by JOTA, in the article published on October 20, 2023. (STF busca solução para unificar jurisprudência e frear reclamações trabalhistas – JOTA).
“To illustrate the size of the issue, in a session of the Court’s 2nd Panel last Tuesday (17/10), Justice Gilmar Mendes presented a survey of the Supreme Court’s case file showing that of the 4,781 complaints filed with the Court this year, 2,566 are classified as “Labor Law” and “Labor Procedure”.
Most of the complaints are related to Labor Law and challenge decisions by the Labor Courts that have ruled against companies that contracted workers as outsourced workers or as PJ (sole proprietorship).”
The most important thing is that the Federal Supreme Court has already established and recognized, through various precedents, the legitimacy and legality of companies contracting workers under employment contracts that differ from those provided for in the Consolidation of Labor Laws. (General Repercussion Theme 725, ADPF 324, ADIN 5.625, RE 958.252).
But the contradictions don’t stop there. Here is some more data for reflection, in comparison with American legislation, through norms, to support the ongoing debate in Brazil.
Take a look at the comparison provided by the Oxford group (ana@oxfordusa.com), in a post sent to various interested parties:
“For example, in Florida, it doesn’t exist:
- 13th salary;
- Maternity allowance;
- Paternity allowance;
- Notice of termination;
- Compulsory paid vacations;
- FGTS (Guarantee Fund for Length of Service);
- Obligation to pay union contributions;
- Declare ESocial (Digital Bookkeeping System for Tax, Social Security and Labor Obligations);
- There is no labor justice;
– Nor, consequently, labor lawsuits;
- Business owners don’t need to do EFD – Reinf (Digital Tax Bookkeeping of Withholdings and Other Tax Information);
- They don’t have to pay FGTS;
- They don’t have a law like 14,611 on equal pay, which, if it exists, is a cause of action in the common courts;
- Segregation issues are a matter for the ordinary courts, without any bureaucracy or obligation for business owners to fill in a form for ethnic-racial identification;
- Cases of harassment or violence fall under the jurisdiction of the ordinary courts, without the need to create yet another function within CIPA (Internal Accident Prevention Committee) to “prevent harassment and other forms of violence in the workplace”;
- There is also no obligation for the OSH to be prepared to inform the Social Security Profile and monitor the worker’s health;
- There is also no PAT, the workers’ food voucher, and, as a consequence, there is no obligation for companies benefiting from the PAT to have programs aimed at “promoting and monitoring the health and improving the food and nutritional security of their workers”;
- There is no FAP/SAT (Accident Prevention Factor/ Occupational Accident Insurance) and its multiplication factor, which is levied on payrolls to increase revenue for the prodigal social security system, and
- To avoid going on too long, there is also no report in which companies have to inform what they pay their workers in healthcare plans and benefits, so that they can charge these plans what the state has spent on worker care.
Why is all this important?
Because these differences and contradictions provide food for thought: 1) the lack of legal certainty brought about by some labor court decisions (see the cases involving Google, Uber, IFood and Rappi); 2) the limitation of job creation; 3) the increase in the social costs of the workforce; 4) the limitation of meritocracy as an instrument for valuing work; 5) the freedom of free enterprise and the economic freedom of workers to seek better working and pay conditions, among other things that the debate can boost in favor of labor justice.
Further information is available from Mr. Ronaldo Corrêa Martins (ronaldo.martins@ronaldomartins.adv.br), + 55 (11) 99971-4780 / +55 (11) 3066-4800 and
Mrs. Juliana Cerullo, (juliana.cerullo@ronaldomartins.adv.br), +55 (11) 99967-3638 / +55 (11) 3066-4800
