Brazil's Supreme Court begins to judge the validity of intermittent work.

The Brazilian Supreme Court (STF) has begun judging the validity of the intermittent work contract, a modality created by the labor reform, Law No. 13,467 of 2017. In intermittent work, the worker is paid only for the hours worked, disregarding the period in which they are "at the disposal" of the company. For the reporting judge, Edson Fachin, the model is not compatible with the dignity of the human person.

The trial was suspended and will resume tomorrow, with the votes of the other ten justices of the Court.

In this type of contract, the provision of services, under subordination, is not continuous, occurring with alternating periods of service and inactivity, determined in hours, days, or months. This model does not apply to aeronautical personnel, who are governed by their own legislation.

The provision is found in articles 443 and 452 of Law 13.467. The hourly wage cannot be less than the minimum wage or the wage paid to other employees in the same company performing the same function. The worker must be summoned at least three days in advance and will have one business day to respond. There is entitlement to proportional vacation pay, thirteenth-month salary, and weekly rest days.

In a lawsuit filed with the Supreme Federal Court (STF), the National Federation of Employees in Fuel and Petroleum Derivative Service Stations (Fenepospetro) argues that, although intermittent work was created under the pretext of expanding job opportunities, this form of hiring leads to lower wages and prevents workers from making a living—since it violates the principles of human dignity and equality, enshrined in the Federal Constitution. Therefore, it questions the validity of the model.

The issue is being judged in three direct actions of unconstitutionality: number 5826, proposed by Fenepospetro, and numbers 5829 and 6154, also proposed by workers' representatives—the National Confederation of Industrial Workers and the National Federation of Workers in Telecommunications Companies and Telephone Operators (Fenattel).

While workers' representatives argue that the legal norm places the worker in the position of machinery, at the disposal of the company's economic activity, the companies' defense argues that this type of work is constitutional and has the potential to increase the hiring of workers, especially during periods of crisis.

The lawyer for Fenepospetro and Fenattel, Hélio Stefani, stated in his oral argument that under the pretext of increasing job opportunities for workers during a period of crisis, the employment relationship is being made more precarious, allowing for wages below the constitutionally guaranteed minimum. According to the lawyer, the worker is treated as a "mere object, tool, machinery" at the company's disposal whenever it sees fit.

The Attorney General of the Union, José Levi do Amaral, stated that Law 13.467, in regulating the contract, did not exchange workers' rights for jobs. "It is wrong to bring the debate about the precariousness of the employment relationship here. The real precariousness lies in informality," he affirmed.

Context

Intermittent work can already be adopted, but some companies are still awaiting approval from the Supreme Federal Court (STF). Between January and October, 141,070 workers were hired under this model, but 88,127 were laid off, leaving a net loss of approximately 50,000 jobs, according to data from Caged (General Register of Employed and Unemployed Workers). In 2019, this form represented 1% of formal employment contracts, according to IBGE (Brazilian Institute of Geography and Statistics) data.

In October 2020, 10,611 intermittent jobs were created, and at the time, the Secretary of Labor, Bruno Dalcolmo, said that the model has proven to be a "valuable" tool in the recovery, despite legal uncertainty.

Vote

In the Supreme Federal Court (STF), the rapporteur for the cases, Justice Edson Fachin, stated that the Constitution made an express commitment to social rights. He cited Article 170 of the Constitution, according to which work is the basis of the Brazilian social and legal order.

According to the rapporteur, intermittent work creates instability, as the worker has no security regarding how much they will work and receive. "It is impossible to affirm that fundamental rights are guaranteed if there is no call for the provision of services," he stated in his vote.

Without the guarantee of being called to work, the worker remains without the real conditions to enjoy fundamental social rights, according to the rapporteur. "This type of employment contract is incompatible with the dignity of the human person."

“Even with the guarantee of proportional payment of the 13th salary and legal bonuses, these guarantees may become insufficient. This is what happens when the worker has no predictability about the hours they will work in the month,” he stated. Due to the instability of the work, it may be impossible to reconcile two or more types of intermittent work or to look for another job without securing the minimum income that should be guaranteed, according to the rapporteur. Therefore, he accepted the request made in the lawsuits.

Source: Economic Value