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 specific case was a hypothesis in which the Regional Court upheld the sentence in which the condition of self-employed person to the driver using the application was admitted.
The Fourth Panel of the Superior Labor Court, in the judgment of the interlocutory appeal in Appeal of Review 10575-88.2019.5.03.0003, of the report of the Minister Alexandre Luiz Ramos, decided that “the work provided with the use of technological platform of management of supply of driver-users and demand for client-users, does not apply to the platform and does not meet the configuring elements of the employment relationship […], therefore, there is no employment relationship between the professional driver and the developer. application”.
The specific case was a hypothesis in which the Regional Court upheld the sentence in which the condition of self-employed person to the driver using the application was admitted. At that time, it was recognized that the driver “had wide autonomy in the provision of services, being the burden of economic activity”, in addition to the absence of subordination in the specific case, since it was up to the driver to decide the time and days to use it. application, bearing the fuel and maintenance costs of the vehicle, which was owned by him.
As for the impossibility of recognizing a job bond between a driver who develops his activities using an application and the company that developed the application, the TST’s decision understood the legal transcendence of the cause, as it refers to the “new legal issue”, notably the interpretation of labor legislation from a perspective in which there is still no consolidated jurisprudence in the TST or decision of binding effect in the STF.
In the grounds of the TST decision, following the premise that “the judge cannot apply the employment relationship standard indiscriminately”, it was explained that the partnership relationship between application driver and the platform has a commercial nature, which does not meet to the CLT criteria for setting up an employment relationship, because “the user-driver can freely choose when and his transportation service will be made available to user-customers, without any minimum work requirement, minimum number of trips per period, billing without any supervision or punishment for this decision of the driver ”.
Furthermore, the understanding of the TST was also based on the thesis signed by the STF in the Declaratory Action on Constitutionality 48 / DF, according to which “Law No. 11,442 / 2007 is constitutional, since the Constitution does not prohibit outsourcing, from activity-means or end ”, as“ the Constitution does not impose a single way of structuring production. On the contrary, the constitutional principle of free enterprise guarantees economic agents the freedom to choose their business strategies within the current framework ”.
By: Wilson Sales Belchior
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 RE 999.435 / SP in which Theme 638 of the General Repercussion is discussed (need, or not, of prior collective bargaining with the workers' union...