July marked the five-year anniversary of Law No. 13.467/2017, which amended the Law on Consolidation of Labor Laws (CLT) and became known as Labor Reform.
In this article, we will touch on topics that, despite the concern of some specialists and the great fanfare at the time of publication, were not used as expected: intermittent work and the length of annual leave for an employment contract.
Intermittent work is defined in Section 443, paragraph 3, of the Intermittent Labor Act, as the provision of discontinuous services, with alternating periods of service provision and inactivity, defined by hours, days or months, with dependency, regardless of the type of activity, with the exception of seafarers who They have their own legislation.
The regulation is given with details of the contractual method mentioned in Article 452-A of the Penal Code, which emphasizes the need to perform a written contract, with reference to the hourly wage which cannot be lower than the minimum wage or due to other employees of the organization performing the same job , even if it is not in intermittent mode.
The legal provision also regulated the manner in which the call must be made, requiring a call three calendar days in advance and a period of one working day for the employee to respond, who would have the right to refuse, as well as reciprocal penalties in case of non-compliance with the agreement.
One of the legislator’s main motivations in creating intermittent work was to seek to further formalize employment and to regulate the so-called “beaks” or “fees” that occur mainly with waiters, security guards, and businesses in event businesses, and even in trade at certain times of the year.
However, since publication, the main concern of many specialists on the subject has been the potential for instability of labor relations, with the risk of many companies using these means inappropriately and without guaranteeing a monthly minimum for such workers. Even experts pointed to similar cases that occurred in other countries, such as the case of zero hour workers In the UK, where an employee is paid only per hour, with no guarantee of minimum monthly working hours.
So much so that, shortly after the law went into effect, still in 2017, direct claims of unconstitutionality were brought in the Federal Supreme Court, ADIs 5.826, 5829, and 6154, which debated the constitutionality of the intermittent work system. The rapporteur of the ADIs is Minister Edson Fachin, who has already taken a stand against this method under the main argument that it does not set minimum working hours or minimum income, which violates the principle of human dignity.
On the other hand, ministers Nunes Márquez and Alexandre de Moraes have already voted in favor of the constitutionality of this labor system. In general, Minister Nunes Marquez stressed that the recruitment method is constitutional because it guarantees the worker payment of premiums such as paid weekly rest, Social Security payments, vacation and the thirteenth proportional salary. In addition, it prohibits the hourly wages from being less than the minimum wage or wages paid in the enterprise to workers who perform the same job, but under a joint labor contract.
Minister Alexandre de Moraes in his vote emphasized the respect for the rights enshrined in Articles 6 and 7 of the Federal Constitution, reconciling them with the need for a new form of contracting. The next vote, long overdue and potentially decisive, is that of Secretary Rosa Weber. The minister requested a witness request, so the trial has been suspended since 12/2020 and so far there is no expectation for a new date for the trial.
In view of the peculiarity of intermittent work, as well as discussions about its constitutionality, care must be taken in assessing its feasibility, since not all branches of activity support its use in a practical way, it is more common in stores, restaurants and in season. Activities, which are always necessary to respect statutory provisions, are under penalty of being called fraud.
In any case, it seems that despite all the discussion about this type of work, the numbers do not show a great deal of support on the part of employers. Data from Caged where annual forms of employment are presented shows that in 2018, only 0.5% of those admitted were in the discontinuous method and in 2019 about 1%.
In 2020, the number of workers hired intermittently was 1.2%, but with a strong increase after July 2020, possibly due to the pandemic and uncertainties about economic activity. This is because, in all branches of the economy, the changes were so drastic and abrupt, that the discontinuous system proved most suitable to help in periods when it was not known with certainty how long there would be a rise in demand. The number remained stable in 2021, with 1.3% of official appointments being carried out on an intermittent basis.
The differences show that although it was used, the discontinuous method by employers was still low and did not have the same ratio that was envisaged when Law No.
We believe that this type of system should continue to be used, however, mostly by certain sectors of the economy and at certain times of the year, due to seasonal activities. However, it will certainly be less shy after the discussions are over when the ADIs are judged by the STF, providing greater legal certainty for companies considering using this type of contract.
With regard to the term of annual discharge of the employment contract, it was included in the CLT in Article 507-B, which provided for the possibility of approval of discharges before the union of employees of the category, detailing the obligations to give and to fulfill monthly during a period of the working year, with the actual release of the fixed premiums In which.
Again, when Law No. 13467/2017 was published, it was conceivable that the discharge period could be carried out randomly, to discharge all business responsibilities of the company on an annual basis, thus significantly reducing the risks of legalization of the company-working relationship.
However, jurisprudence and creed soon specified that the annual discharge needed an explicit reference to the premiums paid, such as premiums, overtime, commissions, etc., as in a court settlement, but only for clearly specified amounts.
Whether due to lack of knowledge or mistrust, many unions opposed the measure, leaving no alternative to the employer, because the ruling is comprehensive about the need for union approval of the category employees.
Another relevant point is the need for the employee’s consent, that is, he may refuse to sign, even if the company and the union explain the terms and exact calculations made. However, there may certainly be cases where an employee is forced to sign out of fear of retaliation and even fired, so that if there is future evidence of vice approval, the term of layoff may be invalidated by the judiciary.
Thus, whether out of fear of the unknown or because of the uncertainty of unfettered legal certainty, the data show that this term was used little, as opposed to what was imagined when the legislation was invented.
The correct use of the term occurs, for example, when in the year in question there was the rendering of extraordinary services which were not duly paid by the company to the employee. In this case, the company can go to the union and ask for a fee for the number of overtime hours, which reduces the risk of employee questioning.
Thus, we always recommend that you consult an attorney who specializes in the specific case to analyze the entire context and potential implications, and seek to verify whether the annual discharge term is applicable to the specific case.
Therefore, in these five years following the publication of Law No. 13.467/2017, it turns out that the intermittent work and annual discharge term of the employment contract have not been used as initially envisaged, mainly due to legal uncertainty on the topics, so that it is up to the legal operators To warn of the risks of use in specific cases and to clarify the possibility of application in certain situations, as a means of mitigating the risks to those concerned.
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