Bill on fine to companies for gender discrimination is approved in the Senate
The House Bill 130/2011, approved by the Plenary of the Federal Senate on March 30, 2021, follows the presidential sanction. The text inserts in the labor...
The requested company explained in the process that its activities occur primarily through the marketplace model
Sentence of the 37th Labor Court of São Paulo, issued this week, dismissed in all its terms Public Civil Action involving meal delivery service, understanding that there is no employment relationship between the delivery people and the application, considering the business model developed by the digital platform, the absence of legal requirements to characterize the employment relationship and the jurisprudence of the Superior Labor Court (TST) in the situation of beauty salon workers, consigning, in the end, that the protection of human work cannot be a obstacle to development.
The specific case is a Public Civil Action filed by the Public Ministry of Labor of the 2nd Region in the face of companies that have an application that intermediates the fast food delivery service, focusing, therefore, on the discussion about the legal relationship between the delivery personnel and the application. The MPT requested the declaration of the existence of an employment relationship between couriers and the digital platform, that it abstain from hiring workers as self-employed, maintain labor intermediaries and institute awards or other forms of remuneration, in addition to a monetary compensation that does not was less than the amount of R $ 24.5 million.
The requested company explained in the process that its activities occur primarily through the marketplace model, which represented, in 2018, 94% of the total orders in the application, in which the delivery of orders to final consumers is entirely carried out by restaurants, participation of delivery partners registered on the platform (independent deliverers or logistics operators), without any interference from the digital platform; and the secondary model called full service, in which orders placed by end consumers are sent via the digital platform to the restaurant, at the same time that registered delivery partners who are closest to that store are informed so they can provide independent, the withdrawal of the order and delivery to the address informed by the application user, with the possibility, at its sole discretion, not accepting the delivery of a specific order.
The sentencing judge, analyzing the business model of the digital platform, observed that it involves “two ways of acting, that is, through a logistics operator and an independent delivery person”, noting that “the alleged fraud to evade employment was not proven in the process. ”, Nor that the logistics operator registers workers through false promises of gain and working conditions, nor that there would be an employment bond between the delivery person and the logistics operator, thus applying the permission to outsource the core activity, as decided by the Federal Supreme Court (ADPF 324 and RE 958.252).
In this sense, he declared that “due to the above, I recognize that the defendant’s activity is in the area of technology, exploring an internet application that allows the restaurant to receive orders and the delivery man / motofretista to provide delivery services, the defendant being left with a percentage of the value of the operation paid in full by the buyer of the meal, its primary activity not being the offer of transportation of goods and, furthermore, that the relationship between the defendant and the logistics operator is to outsource the activity of the courier, that is, the defendant , in this form of operation, it is the carrier of the delivery service offered by the logistics operator ”.
The sentence underlined with regard to the independent delivery person that such “is really free to choose if he wants to work, when he wants to work, for how long he wants to work, being limited or motivated only by the inherent need of any human being to earn income to live and his longing how much income do you intend to earn “, consigning to the absence of the requirements of subordination, personality and continuity, since the delivery person has no obligation to be available to receive delivery calls, being able to refuse them, without punishment, choosing even through which application will deliver.
In addition, the judicial decision was also based on an analogy with the situation of beauty salon workers, who although they carry out core activities, using the infrastructure of the establishment, there is no recognition of an employment relationship, due to the absence of legal requirements. , in accordance with the TST case law.
It was understood, therefore, by the absence of an employment relationship due to the lack of fulfillment of the necessary requirements, since “it remains to be demonstrated that the worker is willing to work on the day he chooses to work, starting and ending the journey at the moment he decides, choosing the delivery you want to make and choosing which application to make since it can be placed
at the same time, for as many applications as you want ”.
Finally, we highlight the aspect of the decision having recognized that “the theme is new, global and challenging since, with technological evolution, the same model of commercial, industrial or service operation spreads across the world almost instantly, with elements of different legal figures “, that is why the need for concrete cases like this one of” serenity in its analysis in order to be clear about the legislation applicable to the model that is already inserted in our social organization “, after all “It is neither credible nor reasonable to imagine that the entire population can and wanted to shape itself between employees and employers”, so that “all human labor must be protected by law, insofar as it does not stifle, annihilate, prevent or hinder development” , it is not up to “the Judiciary to expand an institute in order to reach with it those who are really and clearly out of it”.
By: Wilson Sales Belchior
Source: ClickJus
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