Impacts of the fall of MP 808

Check out the participation of partner Wilson Sales Belchior on Fausto Macedo's blog and in a report by the Estado agency on the impacts of the fall of MP 808

MP adjusting labor reform loses validity

Lawyers working in the field estimate that a series of changes to the rules are coming

Provisional Measure 808 – which provides for adjustments in labor reform – loses its validity on Monday, 23. To become law, the text would need to be approved by Congress, but the deadline has not been met. With the fall of the MP there will be a series of changes in the labor rules again, assess lawyers with intense practice in the area.

The lawyer Carlos Eduardo Dantas Costa, for example, says that one of the main changes concerns the application of the rules of labor reform in labor contracts.

“At the time of the labor reform, there were a series of positions arguing that its application would only apply to new contracts. Although there was no need, the MP expressly provided for the application of labor reform for current contracts. With the fall of the MP, these questions will return and, now, with a new argument: that it was the MP who ensured the application of the reform to the current contracts ”, details Dantas Costa, partner at Peixoto & Cury and professor at FGV-SP .

The lawyer also mentions the obligation of the employer to provide the employee with proof of payment of FGTS and INSS. “The MP created this obligation that, until then, did not exist. In practice, this is very difficult for companies to operate. With the MP falling, the obligation ceases to exist ”, he says.

Carlos Eduardo Dantas Costa also points out the issue of the 12 × 36 working day. “Through the MP, the journey should necessarily be agreed upon by collective agreement or convention, except for companies in the health sector. With the fall of the MP, the 12 × 36 agreement is once again admitted by individual agreement, that is, directly between the company and the employer. ”

The lawyer Paula Santone Carajelescov, of Rayes & Fagundes Advogados Associados, affirms that the MP was seen as a way to appease part of the criticisms of the labor reform, attenuating aspects considered harmful to the worker. Paula considers that the loss of the MP’s validity ‘will certainly reinforce the legal uncertainty and the controversies that have been installed in the scope of the Labor Justice since the reform’.

According to the lawyer, among the most controversial aspects is the change introduced for pregnant and lactating women. ““ The original wording of the CLT, arising from the labor reform, establishes that women can work in places of average or minimum unhealthiness, unless she presents a certificate stating the opposite. In turn, the MP reversed the situation, prohibiting unhealthy work unless the medical certificate releases. ”

Another point mentioned by Paula Carajelescov is about indemnity for moral damages. “The original text of the CLT foreseen with the reform linked the amount of the indemnity to the salary perceived by the worker. The death of a doctor, for example, would be worth more than the death of a cleaning assistant working in the same place. According to the MP, the amount was linked to the INSS ceiling, between 3 and 50 times this limit, depending on the severity of the case. ”

Luis Fernando Riskalla, partner at Leite, Tosto e Barros Advogados, points out that the failure to convert Provisional Measure No. 808 into law may represent a considerable obstacle in the advancement and improvement of labor standards. “We will have another change in labor standards and practices within 6 months of the reform. In addition to creating legal uncertainty for employers and entrepreneurs, this change will certainly generate uncertainty for employees. ”

Riskalla notes that among the most significant changes with the fall of the Provisional Measure is the possibility of fixing the 12 x 36 workday by means of an individual agreement and no longer by collective agreement. Also the possibility for pregnant women to work in an unhealthy environment with possible leave only on medical request and the basis for calculating indemnities for moral damages, which is no longer the social security ceiling and returns to the worker’s salary.

He also adds that ‘important clarifications and concepts, such as, for example, the definition of what is a prize, fall with the Provisional Measure’.

According to Wilson Sales Belchior, partner at Rocha, Marinho e Sales Advogados, with the end of the MP, the points that were changed from the labor reform are valid again according to the previous rules.

“Legal uncertainty and insecurity are clear,” believes Belchior. “After all, the content of the labor reform is already being applied by the courts. The Superior Labor Court has not yet ruled on specific issues of intertemporal law in Law no. 13,467 / 2017. In practice, he left the task of understanding what is valid or not in the specific case to the individual interpretation of the magistrates. Thus, for employers and employees, there is no certainty about the content and form of application of these legal rules, even though they know that the referred law remains constitutional and must be applied in its entirety ”, he analyzes.

“Employers and employees will certainly suffer from established legal insecurity, as their employment relationships will once again be disciplined by a legal text lacking several provisions,” says lawyer Renata Chiavegatto Barradas, from the labor area of ​​Costa Tavares Paes Advogados.

According to Renata, “there is no doubt that Law 13.467 / 17 should be applied in full to all employment contracts formalized after its effectiveness, but the legal text left many doubts about the immediate and full applicability of the new legislation to employment contracts. formalized before the new legislation came into effect and that continued from there “.

She points out that Article 2 of MP 808 “disciplined just such an issue, making it clear that the law had immediate and full application to contracts that, although formalized before its validity, were in progress at the beginning of its validity”.

https: //economia.uol.com.br/noticias/estadao-conteudo/2018/04/23/sem-mp -…