YET ANOTHER CHAPTER IN THE LABOR REFORM:
ORDINANCE 349/2018 REESTABLISHES RULES FROM PROVISORY MEASURE 808/2017
Law 13.467, known as the “Labor Reform”, was approved in July of last year by the National Congress, and, after being sanctioned by President Michel Temer, entered into force on November 11th, 2017.
In order to obtain the approval of the project with celerity, thus avoiding its return for a new vote by the Lower House of Deputies, the congressmen made a deal with the government, in which they would abstain from suggesting any modifications to the text, as long as the government compromised and regulated a few points later through a provisory measure.
On November 14th, 2017, three days after the Labor Reform entered into force, the government edited the Provisory Measure 808/2017, bringing significant modifications to the recently-approved law and establishing, among other matters, the application of the Reform on existing contracts, 12x36 hour work shifts through individual agreements, autonomous workers, pregnant and breastfeeding workers, calculation of moral damage indemnifications, intermittent work and tips.
Since it was not voted on time by the National Congress, the Provisory Measure 808/2017 lost its validity on April 23rd, 2018, causing generalized confusion. With the fall of Provisory Measure 808/2017, Law 13.467/2018 went back into force in its original text, without any perspectives for a return of the previous regulation.
Exactly one month later, the Ministry of Labor and Employment published the Ordinance n. 348, of May 23rd 2018, partially reestablishing the rules previously provided in the Provisory Measure 808/2017, with the aim of regulating especially the employment agreement of autonomous workers and intermittent labor.
We will now examine the main modifications presented by the aforementioned Ordinance regarding autonomous and intermittent workers.
HIRE OF AUTONOMOUS WORKERS
The Ordinance now allows for the hire of autonomous workers with or without exclusivity without the characterization of an employment tie, differently from the provisions in article 7 of the Provisory Measure 808/2017, which prohibited hiring with an exclusivity clause.
According to the exposition of motives of Provisory Measure 808/2017, the prohibition of an exclusivity clause had as its intent “providing clarity to hiring autonomous workers, including the hire for activities and occupations that are regulated through specific laws, prohibiting an exclusivity clause in contracts of such nature, under penalty of the characterization of an employment tie in case the requirements of article 3 of the CLT are present”.
Although the new Ordinance does not prohibit exclusivity in contracts with autonomous workers, it reinforces the provision regarding the characterization of an employment tie through the presence of legal subordination, which was provided in Provisory Measure 808/2017.
INTERMITTENT EMPLOYMENT AGREEMENT
The Ordinance provides that the employment agreement must be mandatorily formalized in writing and registered in the worker’s Work and Social Security Papers – CTPS, even in cases where there is a provision in a collective bargaining agreement or a collective labor agreement.
Complementing the Provisory Measure 808/2018, the Ordinance also provides that the intermittent worker has the right to the remuneration of night work at higher rates than daytime work, as well as salary equivalence in relation to the other employees of the establishment that have the same position.
The Ordinance also establishes that the parties have the choice to define (i) the place of rendering of services; (ii) shifts in which the worker will be called to render services; and (iii) ways and instruments for requesting and answering work rendering requests, all through the intermittent work agreement. However, the new text left out the possibility for the parties to determine the manner in which reciprocal reparations will be done in the event of a cancellation of previously scheduled rendering of services.
Lastly, it is important to call attention to the fact that the Ordinance did not reinstate the provision in Provisory Measure 808/2017 in which, until December 31st of 2020, the employee who is registered through an employment agreement for an undertermined period of time could not render services for the same employer through an intermittent work agreement for the term of 18 months, counting from the date of termination of the employment agreement.
The Ordinance entered into force on the date of its publication on the Official Journal of the Union, on May 24th, 2018.