PUBLISHED IN CURRENT BRAZIL NETWORK
“Observing the employment contract without romanticism, it is to be expected that there will be a significant portion of the population with skills, capacities and spirit for work in a way other than in an employment contract and, with mechanisms capable of generating such work opportunities, they must be regulated with the objective of fulfilling their social function ”, says substitute judge Shirley Aparecida de Souza Lobo Escobar, of the 37th Labor Court of São Paulo, when dismissing an action from the Public Labor Ministry (MPT) that requested recognition of employment relationship between companies and food deliverers.
“All human labor must be protected by law, insofar as it does not stifle, annihilate, prevent or hinder development, when the resulting model does not imply illegalities,” said the judge in her decision, yesterday (27), in which she lists advantages and disadvantages of being a formal employee. And he considers that, in the case under analysis, the worker has the right to choose the model.
It is possible to appeal. The sentence even contradicts the decision of a similar case, from the 8th Court, at the end of last year. Judge Lávia Lacerda Menendez identified unfair competition between companies and determined that the Loggi delivery application should recognize the employment relationship with motoboys that serve the platform. According to the São Paulo MPT, the decision is valid for the entire country and affects approximately 15 thousand motorcyclists.
Employment and rights
The public civil action proposed by MPT-SP, and rejected at first instance, related to the delivery companies Rapiddo and iFood. The Public Ministry maintains that the hiring of self-employed workers, in this case, evades the employment relationship and consequent rights. And it requested compensation payment in an amount corresponding to a portion of the gross revenue, in an amount not less than R $ 24.5 million.
“The theme is new, global and challenging since, with technological evolution, the same model of commercial, industrial or service operation spreads around the world almost instantly, with elements of different legal figures interspersed and that needs to be tutored in accordance with the legal system of each of the countries in which it will be used ”, analyzes the judge of the 37th Court at the beginning of her order. Prosecutors claim that fast delivery apps “are the new siren song in work relationships”, promising an “enchanted and idyllic world”, but in reality, they worsen the living conditions of couriers. What happened in their case would have been a migration from formal employment to the situation of Individual Microentrepreneurs (MEI).
The judge included in the sentence a statement by the Regional Superintendence of the Federal Revenue of Brazil of the 8th Fiscal Region (São Paulo), in response to the MPT, showing that the debts of MEIs enrolled in fast delivery services increased from R $ 302,862.96, in 2012, to R $ 2,409,024.45 in 2018. And the number of MEIs enrolled in fast delivery services increased, in that period, from 2,254 to 35,805.
For the judge, the activity in question is not about offering transportation services, but technology, “enabling the user of the application (end customer) to purchase a meal at the restaurant of their choice, among those who offer their products through of the application, to be delivered to the location determined by a deliveryman previously registered in the application and chosen at random, considering the proximity to the restaurant that sold the meal ”. She recalls that the model does not only involve motorcyclists. “In large centers, such as in the city of São Paulo, it is quite common to see couriers with their boxes moving around on bicycles, electric bicycles, scooters and even walking.”
In the decision, the magistrate said that fraud was not proven in the process to evade employment. She also refuted the “cat” classification for the companies involved.
“In view of the foregoing, I acknowledge that the defendant’s activity is in the area of technology, exploring an internet application that enables the restaurant to receive orders and the courier / delivery driver to provide delivery services, the defendant being left with a percentage of the value of the paid operation entirely 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 performance, it takes delivery of the delivery service offered by the logistics operator ”, he maintains. The judge also stated that, according to the model, the motorcyclist has the freedom to choose between providing services “by registering directly in the defendant’s application or through a logistics operator”.
Owner of the means of production
She also refuted the claim of exhaustive journeys. He stated in the sentence that the motorcyclist is different because he has the work tool – the means of production. “Owning the means of production separates you from the figure of the employee who provides your services using the means of production of the employer and closer to the figure of self-employed. If you own more than one vehicle, or explore the vehicle by putting someone else to work, you will be closer to the figure of an employer ”, he wrote.
“With regard to working hours, it is useful to remember that the employee can work 16 hours without receiving a single extra hour. Just keep two jobs as permitted by law. The employee can also work 382 hours a month, without receiving a single extra hour. In this situation, a large number of health workers are found, who work on a 12 × 36 scale, with a workload of 191 hours per month for each employer, ”said the judge, who did not demonstrate“ the digital easement of the worker when application ”, because the worker, according to her, chooses the day she wants to work and decides the beginning and end of the day.
In the final part of the 31-page sentence, she addresses changes in the world of work: “With technology and other social factors, we have evolved into a plural, multifaceted society, with very varied interests and composed of individuals with equally varied desires. It is neither credible nor reasonable to imagine that the entire population can and wants to shape itself between employees and employers. There are longings that remain in other ways, for the case being analyzed the work of the motofretista in this context as an independent worker ”.
In addition, added the judge, the employment contract brings a series of attractions (vacation, 13th, weekly rest, FGTS), but also obligations. “The employee is obliged to work hours, have time to enter, feed, rest and leave; as a rule the legal model is 6 working days for a rest day; it is necessary to work on sunny or rainy days, on days when you wake up in a good mood or in a bad mood, on the day of your birthday, or of your spouse or child, you may have your working hours changed, you lose your weekly paid rest if you are absent during the week, and from the first absence without justification you can already be warned, in the second suspension and already in the third or fifth (depending on the focus of the gradation of penalties) you can be dismissed for cause and stop receiving several attractive installments, as well as no longer having access to unemployment insurance. ”The employee still needs, he recalled, to subject himself“ to the moods of the boss ”and colleagues.
For her, the model analyzed comprises “work and income” and cannot be confused with “employment and income”. “Recognizing the legality of the business model, in what was the object of this action, there is no offense to the community and social dumping is not characterized, and the issue of competition between equally legal models must be regulated by the legislator. In principle, there is no unfair competition between models that conform to legality ”, he added.