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 ,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 .

 

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 employers 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 ministers vote .

Divergence 

 

According to Nunes Marques, this form of hiring does not represent a precariousness in employment relationships, but rather a valid alternative that regularizes informal situations, providing greater social protection to workers who previously had no formal rights.

 

from the perspective of social protection, although the traditional employment contract offers greater security to the worker, as it establishes a fixed salary and working hours, it must be considered that the new type of contract increases social protection in relation to informal workers, who perform services without any type of contract. 

 

The minister highlighted that the legislation ensures the payment of proportional amounts such as vacations, 13th salary and social security contributions, and that the intermittent contract offers flexibility to both employers and workers, allowing for working hours adapted to the work demand. In addition, this modality can contribute to reducing unemployment and increasing formalization in the labor market.

 

Nunes Marques concluded that, although the modality may require legislative improvements, it does not directly violate the social rights guaranteed by the Federal Constitution.

 

See Nunes Marques vote .

In his vote, Minister  highlighted that this form of hiring reflects the contemporary demands of the labor market, which is characterized by volatility and informality. 

 

He stressed that the model is not only constitutional, but also offers an alternative to formalize millions of workers who would otherwise be excluded from any legal protection.

 

 I do not see any unconstitutionality in the regulations that govern the intermittent employment contract. The legal figure seeks to provide legal and regulatory protection to new labor realities, providing opportunities for both employers and employees ,said the minister.

 

Mendon also highlighted that, although the traditional employment model offers greater security, the intermittent modality may be a more suitable solution for workers seeking flexibility. 

 

Furthermore, he stressed that this modality aims to reduce the high rate of informality in Brazil, contributing to the formalization of employment relationships.

 

Thus, it concluded that the contested rules do not violate the principle of human dignity, but expand the inclusion of workers in the formal market.

 

Although he agreed with the divergence, Minister Luiz Fux, in his vote, highlighted that the regulation of the intermittent contract, as it stands, does not guarantee minimum respect for the fundamental rights of workers.

 

The minister highlighted that the modality introduces a type of employment relationship without predictable working hours or minimum pay, which can make the employment relationship precarious, transferring the risk of the enterprise to the employee.

 

He highlighted that the absence of a minimum working day and the unpredictability of income end up distorting the guarantee of basic rights, such as receiving overtime pay and social security contributions.

 

Fux also criticized the fact that, although intermittent workers are formally hired, in practice they may not receive any remuneration, creating a false perception of inclusion in the labor market. He also argued that the intermittent contract, as it is regulated, camouflages unemployment, since there is no guarantee of work or salary.

 

Therefore, he voted for the partial upholding of the action, declaring the unconstitutional omission in the regulation of the intermittent employment contract and establishing a period of 18 months for the National Congress to correct these gaps, in order to guarantee minimum conditions of protection for the worker.

 

See Fux's vote .

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 workers 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/415119/vista-de-zanin-suspende-analise-de-validade-de-contrato-intermitente