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In the virtual plenary session, the STF resumes the trial of three actions that question the validity of intermittent employment contracts, introduced by the labor reform ( law 13,467/17 ).

 

In this type of contract, the work is not continuous, with alternating periods of service provision and inactivity. In other words, the worker is called upon when there is demand from the employer.

 

The trial began in 2020, when the rapporteur, Minister Edson  voted against intermittent work.  His Excellency was  accompanied  by Minister Rosa Weber (currently retired).  Minister Nunes Marques opened a divergence , understanding the validity of the contract. 

 

Minister Andre  had requested that the case be highlighted , which would then be analyzed in the physical plenary and restarted. However, he canceled the request for highlighting and, therefore, the Court resumed the virtual trial. 

 

See the score so far:

 

The trial is scheduled to end next Friday, the 13th.

 

Intermittent work

 

According to § 3 of art. 443 of the  CLT , an employment contract in which the provision of services is not continuous is considered intermittent. This may occur with alternating periods (hours, days or months) of provision of services and inactivity, regardless of the type of activity of the employee and the employer.

 

Article 452-A of the same law determines that the intermittent contract must be concluded in writing and specifically contain the value of the hourly work, which cannot be less than the hourly value of the minimum wage or that due to other employees of the establishment who perform the same function.

 

Cases

 National Federation of Employees in Fuel and Petroleum Derivatives Service Stations, questions provisions of the labor reform that provide for intermittent employment contracts.

 

According to the entity, intermittent work is a contract in which the provision of services, with subordination, is not continuous, with periods of work and inactivity occurring alternately, and can be determined by hour, day and month, without a fixed working day.

 

Although it was introduced into the legal system under the pretext of expanding the hiring of workers during a period of crisis that is ravaging the country, the Federation understands that, in reality, the intermittent contract leads to the precariousness of the employment relationship.

 

 5,829 filed by FENATTEL - National Federation of Workers in Telecommunications Companies and Telephone Switchboard Operators questions the new contract model, claiming that it makes employment relationships precarious by allowing the payment of wages below the constitutional minimum and the lack of income predictability for the worker.

 

Furthermore, it highlights that law 13,467/17 was drafted under the pretext of  expanding the hiring of workers during a period of economic crisis, but, in practice, resulted in the degradation of working conditions.

 

Finally,  6.154, proposed by the CNTI - National Confederation of Industrial Workers, challenges the provisions of the reform because they violate constitutional principles such as human dignity and the valorization of work. Furthermore, it argues that, by allowing long periods of inactivity and unstable remuneration, the intermittent contract contributes to the social vulnerability of workers, by not guaranteeing a constitutional minimum wage or financial security. 

 

STF returns to judge the validity of intermittent employment contracts. (Image: Gustavo Moreno/SCO/STF)

Rapporteur

 

Justice Edson ruled that the action was partially upheld, in the sense that the rule was invalid.  The intermittent model imposes a reality in which workers cannot plan their financial lives and, therefore, will always be in a situation of precariousness and social fragility.

 

He stated that the flexibility of essential labor rights promoted by this type of contract violates the principle of human dignity, creating a scenario of legal uncertainty for workers.

 

For the minister, the modality instrumentalizes the workforce, placing employees in a position of extreme vulnerability, without guaranteeing the fundamental social rights provided for in the Federal Constitution, such as the minimum wage and the limitation of working hours.

 

In the vote, he highlights that the regulation does not offer sufficient protection to workers, especially with regard to setting minimum working hours and income predictability.

 

 Human dignity demands respect for others as subjects of rights , the minister pointed out, arguing that the intermittent contract transforms the worker into a mere object at the employer's disposal.

 

 The insecurity generated by the lack of definition regarding working hours and the expectation of remuneration in the intermittent contract, which can result in zero remuneration, requires reflections on the remuneration disparities between those hired under the standard modality in relation to those hired under the intermittent modality, especially when both workers are hired for the same tasks and work functions 

 

See the rapporteur's vote .

Risk transfer

 

Before retiring, Minister Rosa Weber cast a vote in the same direction as the rapporteur, highlighting that the intermittent contract transfers the company's economic risks to the worker, placing him/her in a vulnerable situation.

 

For the minister, the intermittent contract violates the principle of human dignity by instrumentalizing the worker as a mere resource at the employer's disposal, without any security regarding his/her subsistence. The absence of a pre-established working day contravenes the fundamental right of the worker to guarantee the minimum for his/her survival and that of his/her family , she stated.

 

See the minister's vote .

Divergence 

 

Minister Nunes Marques, accompanied by Minister Alexandre still in physical plenary, understood that the modality is constitutional, since the provisions do not generate precariousness of workers rights.

 

According to the minister, there is no suppression of labor rights in the intermittent contract or unconstitutionality in the provisions of the labor reform. He emphasized that, in the intermittent work modality, the employee is guaranteed the payment of amounts such as social security contributions.

 

None of the ministers have, to date, reiterated their vote in the virtual plenary. 

 

TST

 

In 2019, the TST issued a unanimous decision  validating an intermittent employment contract, in a case in which an assistant at the Magazine Luiza store requested recognition of the contract for an indefinite period, with payment of the full salary corresponding to the entire period worked under an intermittent regime.

 

The TRT of the 3rd region had understood that, after the labor reform, the intermittent regime would be lawful, but on an exceptional basis, under penalty of precariousness of the worker's rights.

 

In the TST, the ruling, reported by Justice Ives  Filho, overturned the decision, considering that the arguments of the Regional Court contradict the current legislation. The Justice pointed out that, according to the parameters of the law, discontinuous work can be established for any activity, except for airmen, as long as the hourly wage of the other non-intermittent workers of the company is observed.

 

In his understanding, the TRT created parameters and limitations not contained in the CLT.  Contrasting the regional decision with the aforementioned legal commands, the disrespect for the principle of legality could not be more evident , he stated.

 

link: https://www.migalhas.com.br/quentes/414761/stf-volta-a-julgar-validade-de-contrato-de-trabalho-intermitente