SECOND SEMESTER OF 2024- STF/TST
STF (Supreme Federal Court)
1. Employment Relationship Between App-Based Drivers and Digital Platform Companies (Tema 1.291 – RE 1446336)
On December 9, 2024, and December 10, 2024, the Supreme Federal Court (STF) held two public hearings to debate the rights and obligations between app drivers and digital platform companies, given the general repercussion of the topic.
The debate originated from a prior decision by the Superior Labor Court (TST) which recognized an employment relationship between Uber and one of its drivers. This understanding is common in labor courts, while the STF has previously ruled otherwise.
The discussion revolves around the nature of the relationship between the parties, considering the possibility of characterizing it as an employment relationship, self-employment, outsourcing, or a new services provision contractual type to be regulated. Given the significant impact of this ruling on society a public hearing was convened, and comparative legal studies from other countries were analyzed.
It is noteworthy that the Regional Labor Court of the 2nd Region (São Paulo) recently recognized an employment relationship for all iFood delivery drivers, resulting in a financial impact of R$ 10 million in compensation to be converted into a relevant social interest entity.
On the other hand, there are ongoing discussions in the Executive and National Congress about possible regulation of platform-mediated work, creating evident legal uncertainty on the topic. Therefore, the future ruling by the STF will have a direct impact not only on app drivers but also on all workers in digital platform companies, as well as on society, given the labor, social security, and tax implications.
2. Intermittent Work Contract (ADIN No. 5.826 / ADIN No. 5.829 /ADIN No. 6.154)
The Labor Reform (Law No. 13,467/17) introduced the intermittent work contract, which consists of a work contract where “the provision of services, with subordination, is not continuous, occurring in alternating periods of service provision and inactivity, determined in hours, days, or months, regardless of the type of activity of the employee and employer.”
In this type of contract, the compensation is defined per hour worked, not being less than the minimum wage per hour or the remuneration of other employees performing the same function in the company. Additionally, proportional vacation, FGTS (severance fund), and 13th salary are due for the period worked.
The debate on this topic involves the analysis of the constitutionality of this type of contract, as there is an understanding that it could be unconstitutional to flexibilize fundamental labor rights, potentially violating the Principle of Human Dignity.
On December 13, 2024, the Supreme Federal Court partially accepted Direct Actions No. 5,826, 5,829, and 6,154 and, in the accepted part, ruled them unfounded, declaring the constitutionality of the provisions related to the Intermittent Work Contract.
TST (Superior Labor Court)
- Free Access to Justice (Theme 21 – IncluiqRREmbRep 277-83.2020.5.09.0084)
The Labor Reform (Law No. 13,467/17) included paragraphs 3 and 4 of Article 790 of the Consolidation of Labor Laws (CLT), providing for the granting of free access to justice to the party proving insufficient resources to pay court fees, for those earning a salary equal to or less than 40% of the maximum limit of benefits under the General Social Security Regime. This is at the discretion of judges and courts at any stage of the process.
The discussion is based on the need to prove financial hardship to obtain the benefits of free access to justice or whether a mere declaration of hardship is sufficient for granting the benefit.
On October 14, 2024, a session was held to judge an Incident of Judgment of Repetitive Appeals and Repetitive Motions, establishing a provisional thesis by the majority that a mere declaration of poverty by the applicant, under penalty of law, as per Article 790, § 4 of the CLT, is sufficient for granting the benefit, in line with the understanding adopted before the changes brought by the Labor Reform.
The dissenting Justices argued that the Federal Constitution provides “that the State shall provide full and free legal assistance to those who prove insufficient resources,” therefore, access to justice is not unconditional, and proof is required. In this sense, the Justices highlighted that the issue was already addressed in the STF’s judgment of ADI No. 5,766, which dealt with the unconstitutionality of paragraph 4 of Article 791-A of the CLT, whose understanding is in the sense of increasing the absolute legal presumption of economic hardship for the purposes of free access to justice, restricting its granting, upon proof, not just by mere declaration.
Moreover, with the inclusion of specific labor law provisions by the Labor Reform, a remuneration threshold was established as a reference for the absolute presumption of hardship, serving as an objective criterion for granting the benefit.
This understanding provides that the proof of hardship aims to prevent excesses by the litigants, excessive judicialization, excessive litigation of relationships, and, consequently, dejudicialization as a form of access to justice.
On December 16, 2024, the Plenary of the Superior Labor Court established a binding thesis that the judge must grant free access to justice ex officio when the evidence in the case shows that the employee earns a salary below 40% of the social security ceiling. In other cases, the party may submit a request through a personal declaration, being civilly and criminally liable for false information, without the need for additional evidence, unless there is a challenge from the opposing party, in which case the burden of proof of the applicant’s financial conditions lies with the contesting party. See below:
TST – Theme 21 – Binding Thesis: “The judge has the power-duty to grant free access to justice, even without a request from the party, if the evidence in the case shows a salary equal to or less than 40% of the social security ceiling. Those earning above this limit may request the benefit through a personal declaration, under Law 7,115/83, under penalty of Article 299 of the Penal Code. If there is a challenge accompanied by evidence, the judge must hear the applicant before deciding. The decision standardizes the understanding on the topic and expands the protection of low-income workers, promoting access to justice without costs.”.
2. Immediate Effectiveness of the Labor Reform / Application of theLabor Reform to Contracts Signed Before Its Effectiveness /Temporal Application of the Labor Reform (Theme 23 -IncluiqRREmbRep-528-80.2018.5.14.0004)
With the effectiveness of the Labor Reform (Law No. 13,467/17) on November 11, 2017, a discussion began regarding intertemporal law, to understand whether the new legislation applies to all contracts initiated before or after the law’s effectiveness.
The controversy raised is related to the non-application of the new legislation to ongoing contracts, as the suppression by the Labor Reform of rights existing at the time of the contract’s conclusion would constitute a social setback and legal regression of acquired social rights, requiring the preservation of the perfect legal act and acquired rights by employees, with only favorable contractual changes to the employee being possible, as they are the vulnerable party in the labor relationship.
Despite the divergence, on November 25, 2024, a legal thesis was established in an Incident of Judgment of Repetitive Appeals and Repetitive Motions that the application of the Labor Reform norms to ongoing employment contracts regulates rights whose triggering events occur after its effectiveness, with no rights existing before the new legislation being due to ongoing contracts, such as payment of “in itinere” hours, reduction of intra-shift intervals, and payment of labor-related benefits, among others.
TST – Theme 23 – Binding Thesis: “Law No. 13,467/2017 has immediate application to ongoing employment contracts, regulating rights arising from laws whose triggering events have occurred after its effectiveness.”
3. Judgment by the TST of a Repetitive Appeal on ‘PJtização’ and Outsourcing (E-ED-RR-1848300-31.2003.5.09.0011 / E-RRAg-373-67.2017.5.17.0121 / Theme No. 725-STF)
The Supreme Federal Court (STF) ruled on August 30, 2018 on Theme No. 725 (RE 958252 / ADPF No. 324), which deals with the outsourcing of services for the achievement of the company’s core activity, establishing a binding case law that “it is lawful to outsource or otherwise divide work between distinct legal entities, regardless of the social object of the companies involved, with the contracting company maintaining subsidiary liability.”
Thus, seven Justices voted in favor of outsourcing core activities and four against, arguing that outsourcing is not the cause of labor precarization nor does it inherently violate the dignity of work.
However, on December 5, 2024, the Specialized Subsection on Individual Disputes of the Superior Labor Court (SDI-1) accepted two new Incidents of Repetitive Appeals to establish guidelines on the impacts of outsourcing and “PJ-tização”.
Considering the prior judgment by the STF on the issue and the analysis of the guidelines by the TST in this new judgment, whose decision will establish a binding understanding, the expectation is for the standardization of jurisprudence and greater legal certainty regarding the impacts on employees, employers, and union entities.