STF resumes trial of intermittent work contracts this Friday

THE STF (Federal Supreme Court) resumes this Friday (August 21, 2024) the trial on intermittent work contracts. The Court analyzes in a virtual plenary session 3 actions that request the unconstitutionality of provisions of the Labor Reform (law 13,467 2017).

The requests are for the cancellation of contracts. This type of flexible employment relationship was established by the reform. In it, the worker is called by the company to provide services according to the demand for labor.

The current score is at 2×2:

• for the unconstitutionality of the change in labor law: Edson Fachin (rapporteur) and Rosa Weber (retired);
• for constitutionality: Alexandre de Moraes and Kassio Nunes Marques.

The request for a highlight (which takes the trial to the physical plenary) by Minister André Mendonça was cancelled on August 26. Therefore, the votes cast so far remain in place.

The deadline for ministers to cast their votes virtually and without debate is next Friday (13th September).

The authors of the actions that question the modality are:

• the Fenepospetro (National Federation of Employees at Fuel and Petroleum Derivatives Service Stations) in the ADI (Direct Action of Unconstitutionality) 5826;
• the Fenattel (National Federation of Workers in Telecommunications Companies and Telephone Switchboard Operators) in the ADI 5829; and
• the CNTI (National Confederation of Industrial Workers) in ADI 6154.

UNDERSTAND

THE Law 13,467 of 17 regulated the intermittent employment contract in the CLT (Consolidation of Labor Laws). The rule is valid for all activities, except for airmen, who are governed by their own legislation.

This type of contract allows for alternating periods of work and inactivity, without continuous activity by the employee, making the way in which the worker is hired to provide services more flexible.

In other words, the employer calls on the worker when there is a demand for services, paying only for the hours, days or months actually worked.

To Sergio Pelcermanpartner at the firm Almeida Prado Hoffmann Advogados, intermittent work makes it easier to add up remunerations, since the worker does not need to provide the service continuously in a single location.

“Despite being contested, the intermittent work format and other precepts that were presented by the Labor Reform aim to guarantee employment and work for everyone, which must continue to be a basic source in the country”he stated.

According to the labor law expert Micheli Tenoriothe modality regularizes situations that, otherwise, could result in informal hiring. But, even so, it can lead to certain insecurities for the worker.

INSECURITIES

The main insecurity, for Tenório, is financial instability, since remuneration is directly linked to the number of hours actually worked. In other words, if the employee is not called, his/her income will be impacted.

The lawyer stated that the practice can affect the ability to plan financially and carry out personal projects.

Despite being formally linked to the company, the intermittent worker does not benefit from the same legal security and rights guaranteed to employees with a traditional employment contract.

The contract does not establish a minimum working hours nor does it guarantee minimum income or, during periods of inactivity, the rights under articles 6 and 7 of the Federal Constitution, such as the 13th salary, paid vacations and unemployment insurance, according to the lawyer.

In his vote, Alexandre de Moraes, who defended the constitutionality of the rule, said that the rights determined in articles 6 and 7 were respected. According to the minister, the model ensures the minimum protection necessary for the worker.

The right to vacation is also provided for in the law 13,467 2017. However, the payment for the period has a calculation adapted to the type of intermittent work.

This report was written by journalism intern Bruna Aragão under the supervision of assistant editor Isadora Albernaz.