The STF plenary will analyze the working model of app drivers and delivery drivers; understand | Politics

The Federal Court (STF) will analyze, in a plenary session, the work model offered by digital platforms and popularly called “uberisation”. The Court must establish a general guideline for the discussion of the existence of an employment relationship between drivers, delivery drivers and applicants.

At the session, considering another similar case, ministers concluded that no employment relationship existed between a driver and the Cabify app. As a result, a decision of the Regional Labor Court of the 3rd Region, in Minas Gerais, which recognized labor rights under the Consolidation of Labor Laws (CLT) was annulled.

The regional Superintendency of Labor requests the suspension of the transport service via motorbike app in BH

OR g1 prepared a series of questions and answers on the topic.

Why does the case reach the full Supreme Court?

The initiative to submit the issue to the evaluation of all ministers came from the First Panel of the Court, chaired by Minister Alexandre de Moraes.

A plenary decision must establish uniform treatment of the issue. In other words, it will serve as a guide applicable to similar cases.

All the ministers will also participate, as well as the five magistrates of the First College. This way everyone will be able to submit contributions on the topic.

In the session discussing the Minas case, involving a driver and the Cabify app, Panel members noted that the Labor Court recognized links between the apps and their service providers, which contradicts the Labor Court’s understanding working relationships.

The president of the College, Alexandre de Moraes, had then stated that this was a “repeated failure to comply” with the Supreme Court’s guidelines.

“Let’s return to the discussion on the repeated failure by the Labor Court to comply with the decisions of the Federal Court”, underlined Moraes.

“Although we have repeatedly decided, this has been disrespected, which goes back to the Federal Supreme Court. The issue of theoretical, ideological and academic disagreement does not justify the legal uncertainty that has generated several decisions,” he stressed.

Given this scenario, a definition by the full court of the Court aims to give legal certainty to the issue.

Which case will go to trial?

Ministers will analyze another case from Minas Gerais: industrial action involving a delivery driver and the Rappi app. The TRT of the 3rd Region, in Belo Horizonte, recognized the working relationship between the motorcyclist and the platform. The Superior Labor Court (TST) confirmed the decision.

In an individual analysis, the rapporteur, Minister Alexandre de Moraes, suspended the decisions of the Labor Court, because he understood that they contradict the positions already taken by the Supreme Court on free initiative and employment relations.

This case will serve as a basis for developing general guidelines, to be applied in similar cases.

What does it mean to recognize the employment relationship?

When the labor court recognizes the employment relationship between drivers, delivery workers and digital platforms, establishes that companies are obliged to bear the labor rights provided for by the Consolidated Law on Labor Laws: remuneration, holidays, thirteenth salary, social security contributions and FGTS.

Why is the STF analyzing the issue?

The question on the service model established between drivers and deliverymen and on digital platforms initially reaches the Labor Court, following disputes between companies and workers.

However, as the decisions of the trade union bodies recognize or do not recognize labor relations, the participants in the process sue the Court, claiming that their previous agreements have been violated.

Cases come to the Court, then, through so-called complaints, the type of action used to challenge the conformity of a lower court decision with what has already been established by the Supreme Court.

What has the Supreme Court already ruled on this matter?

The rulings of the Supreme Court on the subject of “uberization” are based on previous agreements established by the Court regarding the existence of alternative forms to the employment relationship regulated by the Consolidated Law on Labor.

The STF has already recognized, for example, the possibility of outsourcing, a mechanism whereby a company hires a service provider to carry out a certain activity in its operation – including the so-called core activity, its main task, that foreseen its foundation.

In outsourcing, the relationship between the contracting company and the employee of the service provider cannot be considered subordinate, pursuant to the TLC..

It also concluded that the Constitution does not establish a single way of structuring its production. Since the rule is free enterprise, economic agents have the freedom to choose the business strategies they deem appropriate, in compliance with current legislation.

Furthermore, the STF has also established that the protection of employment, provided for by the Constitution, does not require that all the provision of paid services follows the model of the employment relationship, such as that provided for by the Consolidated Law on Labor.

What did the ministers of the First College say on the subject?

The rapporteur of the case decided in college, Minister Alexandre de Moraes, considered that the employment relationship cannot be characterized by the fact that drivers and deliverymen have the freedom to accept the trips they wish, to set their own timetables and to have other ties with different platforms. Exclusivity, one of the requirements for identifying the employment relationship, is therefore not characterized.

“It is a new path, a new path that has allowed us to increase employment and income”, declared the minister.

“A step backwards would not only be unconstitutional, but, from the point of view of public interest, extremely harmful to society,” he concluded.

Minister Cármen Lúcia expressed concern about the social and social security impact of the lack of a specific system for this segment. Despite this, he believes that this does not mean that the model for resolving the issue is that of the conventional employment relationship.

“This is a case that worries all of us, Brazilian judges and citizens in general, this model, which does not mean adopting the model of labor legislation as if it were a way to solve it. I have no doubt that in 20 years… less, we will have a very serious social and social security problem, because these people who remain in this system of uberization do not have the social rights guaranteed by the Constitution,” the minister said.

“This is a concern of Brazilian society and of all societies. But it cannot be solved by simply repeatedly applying a model in which this relationship does not fit,” he added.

2023-12-30 23:24:50
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