By Anthony de Oliveira Braga. Article published on the portal RH Pra Você
The controversial question concerning the employment relationship of digital platforms. “Uberization,” a term that became popular with the arrival of Uber in Brazil in 2014, may be defined as the provision of services through digital platforms that connect self-employed workers to consumers.
The provision that should be marked by an absence of habituality has brought countless legal discussions, mainly as to the classification and the legal nature of this work.
Despite having already completed a decade on Brazilian soil, the phenomenon still sails in seas of regulatory uncertainty. The Legislative, Executive, and Judiciary branches are still seeking to define concepts and legal frameworks appropriate to this new reality of the labor market.
When we speak of “uberization,” we are also referring to the other apps that make the provision of services more flexible and connect restaurants to consumers, such as iFood, for example.
Decisions of the Labor Court recognizing the relationship between drivers or delivery workers and the digital platform are not unprecedented. In truth, these decisions did not withstand scrutiny when the appeal was subjected to the review of the Superior Labor Court (TST), which, from our perspective, held a discreet understanding favorable to the companies, although the controversy has intensified among the Panels over time.
Recently, the TST admitted an Extraordinary Appeal and submitted the controversy for the Federal Supreme Court (STF) to rule on. On 03/02/2024, the Court, unanimously, recognized the general repercussion of the case, with the proceeding awaiting developments, which already counts on numerous requests for admission as amicus curiae, given the social relevance of the matter.
At the TST, the question of the employment relationship between drivers and platforms is the subject of much controversy. The Fourth, Fifth, and Eighth Panels have already taken a position against recognition. On the other hand, there is a precedent from the Third Panel in the sense of the existence of the elements characterizing the employment relationship.
It is expected that, with the arrival of the case at the STF, and its analysis under the general repercussion regime, the matter will be settled, since decisions taken in concentrated constitutionality review have erga omnes application.
Recently, the Federal Government published a bill that attempts to regulate the matter, but it was not well received, including by the main interested parties, who fear that their remuneration will be affected by the inclusion of a tax burden.
Among the rules of the bill, the contribution to the National Social Security Institute (INSS) stands out, which will become compulsory, maternity benefits for pregnant women drivers, an 8-hour daily workday, absence of exclusivity, and a minimum hourly rate.
It is always important to point out that the creation or regulation of rights is extremely important, including to foster the dignity of work and of the worker.
It seems to us that there is no way to sustain the creation or configuration of an employment relationship along the lines of the Consolidation of Labor Laws (CLT); thus, an alternative is in fact to regulate an intermediate option. Provided that the creation of these new legislative options does not unduly burden the worker and excessively burden the company, they will be welcome and will bring the legal certainty that the topic deserves.
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