Principles of Labor Law
IMPACT ON THE TEST: LOW
When studying labor law, we come across various principles. In the section below, we'll talk about the most important principles of individual labor law for the purposes of the competition.
Protective principle
In employment relationships there is always a conflict between the holder of capital (the employer) and the holder of labor, who is the employee, and this relationship between the parties is naturally unbalanced due to the economic power of the holders of capital.
Informally we can say that it's the golden rule: he who has the gold makes the rules ;-)
To mitigate this imbalance between capital and labor, labor law was created, which is based on the protective principle (or principle of protection).
It should be noted that, in recent times, this principle has suffered attempts to undermine it, as in the labor reform (Law 13.467/2017) and the "outsourcing law" (Law 13.429/2017), with the expansion of the hypotheses allowed.
According to the doctrine, led by the jurist Américo Plá Rodriguez, the protective principle can be subdivided into the principles of the most favorable rule, the most beneficial condition and in dubio pro operario.
Principle of the most favorable rule
According to this principle, if there is more than one rule in force governing the same subject, the one that is most favorable to the employee should be applied to the specific case.
By applying this principle, therefore, respecting the rules of legal hermeneutics, the application of the most favorable rule for the worker must be sought.
It is interesting to note that the principle applies even before labor standards come into force, i.e. during their drafting.
Exceptions to the principle of the most favorable rule:
The so-called "public order precepts" (also knownas "state prohibitive norms"). Let's deal with this subject by taking an example. Prescription is one of these public policy issues. The time limit laid down in the Federal Constitution is, as will be studied later, 2 and 5 years. If, for example, a Collective Labor Agreement (ACT) provided for a limitation period of 30 years, this would not prevail over the constitutional period.
In addition to this case, with the change promoted by Law 13.467/2017 (labor reform) there was a clear attempt to make this principle more flexible, with at least two other exceptions being mentioned below:
2) For the matters listed in article 611-A of the CLT, a rule laid down in a Collective Bargaining Agreement, for example, may prevail over a provision in the text of a law, even if the legal rule is more favorable to the employee. Therefore, for such matters, there was an undeniable attempt to undermine the principle of the most favorable rule.
3) According to the rules of the Labor Reform Law, the conditions laid down in Collective Agreements (ACT - which is the instrument signed between the employees' union and the company) "will always prevail" over those laid down in a Collective Convention (CCT - signed between two unions), according to article 620 of the CLT:
CLT, art. 620. The conditions established in a collective bargaining agreement will always prevail over those stipulated in a collective bargaining agreement.
Therefore, we can say that the principle of the most favorable rule is overshadowed when collective bargaining agreements or conventions are present.
Principle of the most beneficial condition
The principle of the most beneficial condition is related to contractual clauses (contained in the employment contract or company regulations) which, being more advantageous to the worker, must be preserved for the duration of the employment relationship.
Thus, by applying this principle, it is invalid to remove a clause from an employment contract that harms the employee.
Article 468 of the CLT is along these lines:
CLT, art. 468 - In individual employment contracts, it is only lawful to change the respective conditions by mutual consent, and even then provided that no direct or indirect damage results to the employee, under penalty of nullity of the clause infringing this guarantee.
Another example of the principle of the most beneficial condition is the following excerpt from Precedent 51 of the TST:
SUM-51 REGULATORY STANDARD. ADVANTAGES AND OPTION FOR THE NEW REGULATION. ART. 468 OF THE CLT
I - Regulatory clauses that revoke or alter previously granted benefits shall only apply to workers hired after the revocation or alteration of the regulation.
The following passage from the work of Sérgio Pinto Martins
"The most beneficial condition to the worker must be understood as the fact that advantages already won, which are more beneficial to the worker, cannot be modified for the worse. It is the application of the acquired right rule (art. 5, XXXVI, of the Constitution), of the fact that the worker has already won a certain right, which cannot be modified, in the sense of granting an unfavorable condition to the worker."
In dubio pro operario principle
According to the principle of in dubio pro operario, when faced with two equally valid options, the interpreter of labor law must apply the option that is most advantageous to the worker.
This principle is criticized by Justice Godinho as it would conflict with the principle of the natural judge (CF/88, art. 5, XXXVII and LIII
According to Justice Godinho
"(...) if the judge is in doubt in view of the existing body of evidence and the applicable presumptions, he must rule in favor of the party who has the burden of proof on that doubtful topic, and not according to the generic guideline in dubio pro operario."
The principle under study is based on the need to balance the relationship between capital and labor also in the procedural aspect, which currently clashes with the theory of the burden of proof.
The in dubio pro operario principle is also known as the in dubio pro misero principle.
Principle of harmful contractual inalterability
Just as we commented on the principle of the most beneficial condition, the principle of harmful contractual inalterability is also expressed in article 468 of the CLT, transcribed just above.
This principle has its origins in the general civil law principle of the inalterability of contracts (pacta sunt servanda).
3 CF/88, art.
4 DELGADO, Mauricio Godinho. Op. cit., p. 205.
Note that this principle does not prevent changes to employment contracts, which are common in practice. What is restricted are harmful changes where the employee is harmed.
It is well known that the employer, in this condition, has the power to manage his business - this is the employer's so-called jus variandi.
In this respect, it is important to note that small changes made by the employer that do not frustrate labor rights can be implemented, but the specific case must be analyzed to see whether or not there has been an affront to the principle of harmful contractual inalterability.
In addition, it should be noted that some contractual clauses can be negotiated with the intermediation of the workers' union representation, through collective bargaining.
It is therefore possible, through collective bargaining, for certain clauses to be made more flexible in order to avoid greater harm. We'll talk about this in the comments on article 70 of the
Principle of unavailability of labor rights
This principle, also called the principle of the imperative nature of labor rules, is a limitation on the autonomy of the parties in labor law.
In civil law, the parties have the autonomy to negotiate contractual clauses, which, in labor law, could lead to workers giving up rights in order to gain or keep their jobs.
Thus, in view of the aforementioned imbalance between capital and labor, in the labor sphere the parties cannot freely negotiate labor clauses.
The principle under study is related to the impossibility, as a rule, of waiver
On the other hand, with the approval of Law 13.467 (labor reform), the principle of the unavailability of labor rights has been undermined, such as those situations in which what is negotiated can prevail over what is legislated:
CLT, art. 611-A. Collective agreements and collective bargaining agreements take precedence over the law when, among other things, they provide for: (...)
In addition, the so-called "senior employees", who are those with higher education and who receive salaries higher than twice the RGPS ceiling, will be able to negotiate directly with their employers, without intermediation by the professional union (CLT, art. 444, sole paragraph).
Thus, in the case of these employees, they themselves will be able to negotiate rights, so that, for them, there has been a reduction in the incidence of the principle of the unavailability of labor rights.
Principle of the primacy of reality
Through this principle, labor law seeks to prioritize reality over form.
Thus, in cases where there is, for example, a typical employment relationship masked by an internship contract (we will see that interns are not employees), the employment relationship should be recognized by application of this principle.
Another example: a certain company hires a "service provider" who, in reality, is a genuine employee, because the relationship contains all the elements that make up an employment relationship: in this case, by applying the principle under study, the civil law contractual relationship will be deconstructed and the employment relationship will be recognized.
The principle of the primacy of reality is also called the principle of the reality contract.
Since, in labor law, facts are more important than formal adjustments (see examples cited above), the CLT provides for the nullity of acts practiced with the aim of defrauding it:
CLT, art. 9 - Acts carried out with the aim of distorting, preventing or defrauding the application of the precepts contained in this Consolidation shall be null and void.
Principle of continuity of the employment relationship
This principle values the employee's permanence in the same employment relationship, given the advantages this represents.
As time passes in the same job, the worker receives training, takes courses, receives salary increases, remuneration advantages such as annual bonuses, five-year bonuses, etc.
Precedent 212 of the TST is an example of case law related to the principle of continuity of the employment relationship:
SUM-212 DISMISSAL. BURDEN OF PROOF
The onus is on the employer to prove the termination of the employment contract, when both the provision of services and the dismissal are denied, as the principle of continuity of the employment relationship constitutes a presumption in favor of the employee.
We will study employment contracts throughout the course, and in this topic it is important to stress that, based on the principle of continuity of the employment relationship, the rule is that employment contracts are signed for an indefinite period.
Thus, in view of the principle under study, fixed-term employment contracts are an exception, and will only take place in legally defined cases. The rule is that the contract is indefinite.
Also related to the principle under study is article 448 of the CLT, according to which employment contracts remain in force even if there is a change of ownership in the company (succession of employers).
Principle of wage intangibility
This principle gives salaries a number of legal guarantees, since they are foodstuffs.
Thus, the intangibility of wages covers not only the nominal irreducibility of their value, but also the prohibition of undue deductions, timeliness of payment, etc.
Here are the provisions of the CF/88 and the CLT that materialize the principle of wage intangibility:
CF/88, art. 7ㅇ The rights of urban and rural workers, in addition to others aimed at improving their social condition, are: (...)
VI - irreducibility of salary, except as provided for in a collective agreement;
CLT, art. 459 - The payment of wages, whatever the type of work, must not be stipulated for a period of more than 1 (one) month, except with regard to commissions, percentages and bonuses.
CLT, art. 462 - The employer is prohibited from making any deduction from the employee's wages, except when it results from advances, provisions of law or collective bargaining agreement.
CLT, art. 465. Wages shall be paid on a working day and at the place of work, during working hours or immediately after the end of working hours, except when deposited in a bank account, subject to the provisions of the previous article.
The aforementioned constitutional and civil law provisions, which relate to the principle under study, will be detailed in the lesson on the subject of "Remuneration and Wages".
Sources of labor law
The sources of labor law are divided into formal and material, as well as heteronomous and autonomous.
The concept of material source relates to a pre-legal moment, where social, economic and political factors influence the establishment of legal norms. This is the case, for example, with the labor union movement.
In other words, material sources are factors that influence the creation and alteration of legal norms (which is why they relate to the pre-legal moment).
The formal sources of labor law are classified as such in view of their externalization in the legal order, in the form of a constitution, amendment to the constitution, law, decree, etc.
Thus, formal sources are
Formal sources are divided into heteronomous sources and autonomous sources.
Heteronomous sources of labor law (laws, decrees, etc.) are rules drawn up by the state, with no direct participation by those to whom they are addressed in their production.
Autonomous sources are drawn up by the recipients themselves, i.e. the recipients of the rule regulate their working conditions, either directly or through their representative bodies (trade unions). This is the case with collective bargaining.
Here is a diagram to visualize the relationship between the concepts studied:
Sources of labor law |
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| Formal sources | Material sources | |
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Heteronomous sources |
Autonomous Sources | Trade union movement Workers' political movement |
TRTs (Judicial Analyst - Judicial Area) Labor Law www.estrategiaconcursos.com.br
Collective Bargaining Agreement
Work (CCT)
Collective Bargaining Agreement
(ACT)
Collective Bargaining Agreement (CCT)
Collective Bargaining Agreement (CBA)
We will now look at the formal sources of labor law, divided into heteronomous sources and autonomous sources.
Heteronomous sources
Federal Constitution
The 1988 Constitution of the Federative Republic of Brazil is the heteronomous source of labor law, occupying the apex of the hierarchy of legal norms.
Laws
Laws (abstract, impersonal and mandatory legal rules), issued by the Legislative Branch and promulgated by the Executive Branch, are the formal source of labor law.
Provisional Measures (MP), issued by the President of the Republic in cases of relevance and urgency, under the terms of article 62 of the CF/88, are also heteronomous sources of labor law.
International Treaties and Conventions
International treaties and conventions are heteronomous sources of labor law when ratified by Brazil.
Conventions of the International Labor Organization (ILO) that have been ratified by Brazil are therefore formal sources of labor law.
While we're on the subject of the ILO, let's remember that this international body also issues Recommendations, which are non-binding instruments and are not ratified by member countries; therefore, Recommendations are not a formal source of labor law.
Decrees
The Decree is issued by the President of the Republic, under the terms of art. 84 of the CF/88, and is considered a formal source of law:
CF/88, art. 84: The President of the Republic has exclusive power to: (...)
IV - sanctioning, promulgating and publishing laws, as well as issuing decrees and regulations for their faithful execution;
Ordinances, Normative Instructions and other acts
As Mauricio Godinho Delgado² teaches,
"Diplomas of this nature, in principle, do not constitute formal sources of law, since they only bind the officials to whom they are addressed and within the limits of hierarchical obedience."
However, as the jurist clarifies, in some cases the law itself assigns these regulations the task of regulating certain precepts, such as the following article of the CLT:
CLT, art. 192 - The exercise of work in unhealthy conditions, above the tolerance limits established by the Ministry of Labor, ensures the perception of additional respectively of
Based on the above determination, the Ministry of Labor issued Ordinance 3.217/78, which includes Regulatory Standard № 15, in whose Annexes we can find tolerance limits for noise, heat and chemical agents.
Based on this understanding, therefore, we can consider the MTb's Occupational Health and Safety Regulatory Norms (NR) - approved by Ordinance - as a formal source of labor law.
Normative rulings
Normative rulings are issued by the Labor Court in collective bargaining cases:
CF/88, art. 114, § 20 If either party refuses collective bargaining or arbitration, they may, by mutual agreement, file a collective bargaining agreement of an economic nature, and the Labor Court may decide the dispute, respecting the minimum legal provisions for labor protection, as well as those previously agreed upon.
Arbitration award
The arbitration award is the instrument resulting from an arbitration process, in which a third party (usually called an arbitrator) is called upon to settle a dispute on a permanent basis.
As a rule, when collective bargaining is frustrated, there are cases in which the parties (unions) elect an arbitrator, who is responsible for issuing a decision (arbitration award) that resolves the impasse:
CF/88, art. 114, § 1 - If collective bargaining is unsuccessful, the parties may elect arbitrators.
Autonomous sources
Autonomous sources of labor law are collective bargaining (collective bargaining agreement and collective bargaining agreement).
These negotiations have legal validity and are drawn up by employers and employees with the participation of representative bodies (trade unions).
Below is a representative diagram of the relationship between negotiation, collective bargaining and collective bargaining agreements, with the agents involved in drawing them up:
| Collective bargaining | |
Collective Bargaining Agreement (CCT) |
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Result of negotiations between the employers' union and the employees' union |
Result of negotiations between one (or more) company(ies) and the employees' union |
We will now deal separately with some of the rules relating to each type of collective bargaining. The subject will be covered in full during the course.
Collective Bargaining Agreement
The legal definition of a collective bargaining agreement is as follows:
CLT, art. 611 - A Collective Bargaining Agreement is a normative agreement by which two or more trade unions representing economic and professional categories stipulate working conditions applicable, within the scope of their respective representations, to individual labor relations.
Thus, the collective agreement covers the entire professional category (shop workers, construction industry workers, teachers, etc.) in the union's territorial base.
Employees are not obliged to join the union of their category, but even non-members are covered by the provisions of the collective bargaining agreement.
Along these lines, for example, even employees who are not members of the union representing their category are entitled to the wage floor that may be established in the collective bargaining agreement.
Collective Bargaining Agreement
Let's take a look at the law's provisions on collective bargaining agreements:
CLT, art. 611, § 1 The Trade Unions representing professional categories may enter into Collective Agreements with one or more companies in the corresponding economic category, stipulating working conditions applicable within the scope of the company or the parties to the agreement.
As can be seen from the above diagram and from a reading of the CLT, the ACT is signed between the workers' union and the company(ies), with no active participation by the employers' union.
Regarding the hierarchy of sources of labor law, since the labor reform of Law 13,467, the conditions of the Agreement, which are more specific than those of the Convention, will always prevail over the conditions of the Collective Bargaining Agreement. Therefore, those conditions arising from the instrument signed with the company(ies) prevail.
See below how the change came about:
| Before | After | ||
Art. 620. The conditions established_in |
Art. 620. The conditions established |
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Convention when more favorable, in a collective bargaining agreement always |
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shall prevail over those stipulated in |
shall prevail over those stipulated |
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| Agreement. | in a collective bargaining agreement. |
We'll talk more about Collective Labor Law in a specific lesson in this course.
Uses and customs
To conclude the subject, I would like to point out that the majority of the doctrine classifies uses and customs as a formal source of labor law, based on article 8 of the CLT:
CLT, art. 8 - The administrative authorities and the Labor Court, in the absence of legal or contractual provisions, shall decide, as the case may be, by case law, analogy, equity and other general principles and rules of law, especially labor law, and also in accordance with custom and comparative law, but always in such a way that no class or private interest prevails over the public interest.
Other sources
Well folks, we've talked about the material sources of labor law and the formal sources, divided into heteronomous and autonomous sources. We need to comment on other institutes which, given the doctrinal controversy over their classification, I decided to call "other sources".
Jurisprudence
Jurisprudence is the repeated interpretation given by the courts to legal rules, based on the judgment of specific cases brought before the courts. This is the case, for example, with the Precedents of the Superior Labor Court (TST).
There is controversy over the classification of case law as a formal source or not. Some authors believe that it is not a formal source, as it does not have the value of a general rule that must be complied with.
Other authors believe that case law plays the role of creator of law, as Minister Godinho
"(...) the judicial positions adopted similarly and repeatedly by the courts would gain the authority of rule acts within the legal order, as they affirm themselves, throughout the legal dynamic, as general, impersonal, abstract precepts, valid ad futurum - typical normative sources, therefore."
Contrary to this position, the labor reform created
CLT, art. 8, § 20 Precedents and other statements of case law issued by the Superior Labor Court and the Regional Labor Courts may not restrict legally established rights or create obligations that are not provided for by law.
For example, a TST precedent stated that the employer should not withdraw the bonus of an employee who loses his commission position after 10 years. This obligation imposed on the employer is not provided for by law. Therefore, according to the reform, the TST (and the other labor courts) could not create obligations like this, since they are not provided for by law.
Concluding the subject of jurisprudence, it is important to talk about Binding Precedents.
With Constitutional Amendment 45/2004, the Federal Supreme Court (STF) has the power to approve precedents that are binding on the Public Administration, i.e. they are endowed with generality, impersonality and abstraction and can therefore be considered formal sources:
CF/88, art. 103-A. The Federal Supreme Court may, ex officio or upon provocation, by a decision of two thirds of its members, after repeated decisions on constitutional matters, approve a precedent which, as from its publication in the official press, will have binding effect in relation to the other bodies of the Judiciary and the direct and indirect public administration, at the federal, state and municipal levels, as well as review or cancel it, in the manner established by law.
Principles
There are doctrinal controversies about whether or not general principles of law are formal sources of law, which is why I left them in this section of the lesson.
Justice Godinho believes that recent doctrine gives principles a normative function, which he refers to as a "concurrent normative function", and that from this point of view principles would be a formal source of law.
Business regulations
As we mentioned above, there is a great deal of doctrinal controversy over the classification of company regulations. Business regulations are not accepted by the doctrine as a formal source, since, despite their generality, abstraction and impersonality, they are drawn up unilaterally by the company.
Another part of the doctrine, such as Amauri Mascaro
Finally, I would like to point out that company regulations are one of the issues in which what is negotiated will take precedence over what is legislated (CLT, art. 611-A, VI).
4 DELGADO, Maurício Godinho. Labor Law Course. São Paulo: LTr, p. 163
5 NASCIMENTO, Amauri Mascaro. Labor Law Course. 15 ed. São Paulo: Saraiva. P. 226.
WORKERS' CONSTITUTIONAL RIGHTS
IMPACT ON THE TEST: AVERAGE
In this topic of the course, we will basically look at the sections (and sole paragraph) of Article 7 of the Civil Code, where the rights of urban and rural workers are listed.
We will also look at the applicability of these rights to the categories of temporary workers and domestic workers.
CF/88 provisions commented on
We will now look at the rights of urban and rural workers in the sequence set out in the Federal Constitution.
CF/88, art. 7 These are the rights of urban and rural workers, in addition to others aimed at improving their social condition:
I - employment relationship protected against arbitrary dismissal or dismissal without just cause, under the terms of a complementary law, which will provide for compensatory indemnity, among other rights;
After the advent of our current Constitution, there is no longer the ten-year stability of the employee provided for in the CLT (before the CF/88, an employee who had been with the company for more than 10 years could not be dismissed except for serious misconduct or circumstances of force majeure).
Currently, however, there is a protection for the employee who is dismissed in cases where the dismissal is arbitrary or without just cause, which is the 40% FGTS fine (Law 8.036/1990).
It would be as follows:
In the event of arbitrary dismissal (a
that is not based on a reason
disciplinary, technical, economic or
financial)
or \begin{tabular}{l}
If there is no just cause (art. 482:
abandonment of employment, act of
improbity, etc.)
If there is no just cause (art. 482:
abandonment of employment, act of
improbity, etc.)
Compensatory fine
of the FGTS
\end{tabular}
of the FGTS
\end{tabular}
The complementary law referred to in the provision does not yet exist.
CF/88, art. 7, II - unemployment insurance in the event of involuntary unemployment;
Employees who are dismissed without just cause, i.e. those who did not cause their dismissal, are entitled to unemployment insurance.
Unemployment insurance is paid to those dismissed without just cause, artisanal fishermen (during the closed season - a period in which fishing is not allowed so as not to harm the reproduction of fish, crustaceans, etc.) and
is also due to workers who have been reduced to conditions analogous to slavery and have been rescued in a Ministry of Labor inspection.
The details of the Unemployment Insurance Program (requirements for obtaining the benefit, amount and value of the installments, etc.) are defined by Law 7.998/90.
CF/88, art. 7, III - length of service guarantee fund;
The Severance Indemnity Fund (FGTS) is regulated by Law 8.036/90, which provides for the Severance Indemnity Fund and other measures.
All employers are obliged to deposit in a linked bank account the amount corresponding to
Apprenticeship contracts have their FGTS rate reduced to 2%.
CF/88, art. 7, IV - minimum wage, set by law, nationally unified, capable of meeting your basic vital needs and those of your family with housing, food, education, health, leisure, clothing, hygiene, transportation and social security, with periodic adjustments that preserve their purchasing power, being forbidden to be linked for any purpose;
Since CF/88, the minimum wage has been nationally unified, and because of this the provisions where the CLT provided for "regional minimum wages" were not accepted by the Constitution.
Be careful not to confuse the minimum wage with the wage floor, which we'll deal with in the next section.
We'll talk (a lot) about salaries in a specific lesson.
CF/88, art. 7ㅇ, V - wage floor proportional to the extent and complexity of the work;
A wage floor is established for a certain category through collective bargaining. Thus, the floor varies according to the category and the scope of the respective union.
Example: the wage floor for retail employees in the city
The salary floor can also be defined by the Executive Powers of the states of the federation, as provided for in Complementary Law 103/2000, which "authorizes the states and the Federal District to institute the salary floor referred to in item V of article 70 of the Federal Constitution, by application of the provisions of the sole paragraph of its article
CF/88, art. 7®, VI - irreducibility of salary, except as provided for in a collective agreement;
As a rule, employees' salaries may not be reduced for any reason.
The constitutional exception to irreducibility makes the measure conditional on the intervention of the workers' union, through collective bargaining (the genre "collective bargaining" includes the species "collective agreement" and "collective agreement").
This nominal reduction in salary can occur in extreme cases (for example, an economic crisis) where the union accepts the measure in order to avoid layoffs.
CF/88, art. 7, VII - guaranteed salary, never less than the minimum, for those who receive variable pay;
The minimum wage is guaranteed to employees as a way of preventing employers from further reducing this minimum wage level which, as we have seen, is nationally unified.
Some employees have a fixed salary, while others have a fixed and a variable salary (we'll talk about this in the salary and remuneration lesson).
In these cases, what matters for the application of the rule is the total amount to be received, i.e. there is nothing to prevent the variable portion from being less than the minimum, as long as this portion, added to the fixed portion, guarantees the minimum wage.
VIII - thirteenth salary based on full remuneration or retirement amount;
Thirteenth salary, 130th salary or Christmas bonus are synonymous.
The Christmas bonus must be paid by December 20th of each year, and the bonus must be paid in advance (half of the previous month's pay) between February and November of each year. We'll talk more about this in the pay and salary lesson.
IX - higher pay for night work than day work;
The night bonus is the right of those who work at night, considered to be from 10 p.m. to 5 a.m. (urban environment), 9 p.m. to 5 a.m. (rural environment - agriculture) and 8 p.m. to 4 a.m. (rural environment - livestock).
For the urban environment the additional is
X - protection of wages in the form of the law, with wrongful withholding constituting a crime;
Wages and salaries are of a maintenance nature, which is why the employer cannot withhold wages and salaries. We'll talk more about this in the pay and salary lesson.
XI - participation in profits or results, unrelated to remuneration, and, exceptionally, participation in company management, as defined by law;
This sum was regulated by Law 10.101/00, which "regulates workers' participation in company profits or results as an instrument of integration between capital and labor and as an incentive to productivity, under the terms of art. 70, item XI, of the Constitution".
XII - family allowance paid on the basis of the low-income worker's dependent, under the terms of the law;
Family allowance is a social security benefit, regulated by Law 8.213/91 (Social Security Benefit Plans).
According to the aforementioned law, the family allowance will be paid monthly to insured employees and self-employed workers, in proportion to the number of children or equivalent.
Note that, after EC 72/2013, domestic workers also became entitled to the family wage, a right that depended on regulation, which was carried out through LC 150/2015 (the new domestic workers' law).
Thus, the benefit is paid in quota(s), depending on the number of child(ren) or equivalent of any condition, up to 14 (fourteen) years of age or disabled of any age.
It is important to note that the family allowance will not be incorporated into the salary (or the benefit the insured person is receiving) for any purpose.
XIII - normal working hours of no more than eight hours a day and forty-four hours a week, with the option of compensating working hours and reducing working hours by collective bargaining agreement;
The normal daily working day is 8 hours and the weekly working day is 44 hours (this would be the case, for example, with 8-hour working days from Mondays to Fridays and 4 hours on Saturdays).
We'll talk about compensating working hours (making up for extra work on one day by reducing working hours on another) and other related issues in the lesson on working hours and rest breaks.
One more point:
XIV - six-hour shifts for work carried out in uninterrupted relay shifts, unless collectively negotiated;
In non-stop shifts, there is an alternation of working hours (one day the employee works in the morning, the next in the afternoon and the next in the evening), which is detrimental to their health and social integration. For this reason, the working day is 06 hours (unless collectively negotiated) instead of the normal 08 hours.
We'll talk about uninterrupted relay shifts (IRR) in the lesson on working hours and rest breaks.
XV - paid weekly rest, preferably on Sundays;
Paid weekly rest (RSR), also known as weekly paid rest (DSR), is regulated by Law 605/49, according to which "every employee has the right to a paid weekly rest of twenty-four consecutive hours, preferably on Sundays (...)".
As a rule, the paid weekly rest (RSR) does not necessarily have to coincide with Sunday, as the CF/88 speaks of "preferentially".
We'll talk more about DSR in the lesson on working hours and rest breaks.
XVI - remuneration for overtime work that is at least fifty percent higher than the normal rate;
Since CF/88, the overtime bonus has been at least 50%.
In cases where there is collective bargaining establishing rates higher than this constitutional minimum, the percentages negotiated through the union will apply.
XVII - paid annual leave with at least one third more than the normal salary;
Vacation will be taken during the concessive period (which occurs after the acquisition period), and its remuneration must be increased by the constitutional third, which represents
We will discuss the subject of vacations in the next lesson.
XVIII - maternity leave, without prejudice to employment or salary, for one hundred and twenty days;
Maternity leave lasts 120 days, during which the employment contract is interrupted. Under the terms of Law 8.213/91 (Social Security Benefit Plans), "maternity pay is due to Social Security insured women for 120 (one hundred and twenty) days, starting between 28 (twenty-eight) days before childbirth and the date of childbirth, observing the situations and conditions provided for in the legislation regarding maternity protection".
Since 2002, when the CLT and Law 8.213/91 were amended, employees who adopt or obtain legal guardianship for the purpose of adopting a child will also be granted maternity leave.
Finally, Law 11.770/08 was published in 2008, establishing the Citizen Company Program. This program grants tax incentives to companies that extend their employees' maternity leave by 60 (sixty) days, making the total leave 180 days.
XIX - paternity leave, under the terms established by law;
There is still no law setting a time limit for the leave, so the 5 days provided for in the Transitional Constitutional Provisions Act (ADCT) are still valid.
If there is a provision in a collective bargaining agreement for a longer period, the provision in the collective bargaining agreement will apply.
Finally, with Law 13.257/2016 (which amended the Citizen Company Program Law), it is now also possible to extend paternity leave by 15 days, for a total of 20 days.
XX - protection of the women's labor market, through specific incentives, under the terms of the law;
Nor has the provision been regulated by infra-constitutional legislation.
XXI - prior notice proportional to length of service, with a minimum of thirty days, under the terms of the law;
Prior notice will be studied in a specific lesson in the course. It applies to contracts for an indefinite period.
In 2011, the proportionality of this institute was regulated by Law 12.506/11, according to which three (3) days will be added to the prior notice per year of service in the same company, up to a maximum of 60 (sixty) days, making a total of up to 90 (ninety) days.
XXII - reducing the risks inherent to work, through health, hygiene and safety standards;
This provision is one of the foundations for the validity of the Regulatory Norms (NR) issued by the Ministry of Labor, which aim to protect the health and safety of workers governed by the CLT.
XXIII - additional remuneration for hazardous, unhealthy or dangerous activities, in accordance with the law;
The bonuses are due in the situations defined in the CLT, according to which work in unhealthy conditions, above the tolerance limits established by the Ministry of Labor, ensures the perception of bonuses of
As we mentioned earlier, the CLT talks about "minimum wage of the region", but with the CF/88 the minimum wage is nationally unified (CF, art. 70, item IV).
As for dangerousness, this occurs when there is permanent contact with flammables, explosives, electricity, physical violence or motorcycles, in conditions of accentuated risk. In these cases, employees are entitled to a surcharge of
XXIV - retirement;
Retirement is a right for workers, provided they meet the age and contribution time requirements, as set out in the CF/88 itself and in the social security legislation.
Retirement is a right for workers, provided they meet the age and contribution time requirements, as set out in the CF/88 itself and in the social security legislation.
XXV - free childcare for children and their dependents from birth to five (5) years of age in nurseries and pre-schools;
This is a right whose realization will depend on the actions of the employer and the government, with the provision of suitable premises.
XXVI - recognition of collective bargaining agreements;
As we saw earlier, collective bargaining agreements are autonomous sources of labor law and their provisions must be respected.
XXVII - protection against automation, in accordance with the law;
The device is a constitutional provision to protect workers against technological innovations that reduce the demand for labor as a result of the use of machines that eliminate jobs.
XXVIII - insurance against accidents at work, at the employer's expense, without excluding the compensation to which the employer is obliged, when he is at fault;
Insurance against accidents at work (SAT) - or Degree of Incidence of Incapacity to Work Due to Risks in the Work Environment (GILRAT) - is a charge whose rules have been detailed in social security legislation.
According to Law 8.212/91 (Social Security Funding Plan), this insurance is intended to finance special retirement, which is a benefit applicable to insured persons who have worked under special conditions that harm their health or physical integrity, and also other benefits granted due to the degree of incidence of work incapacity resulting from environmental risks at work.
The employer's contribution will be
The provision stresses that, even if SAT/GILRAT is paid, the employer remains liable to compensate injured employees in cases where there is intent or fault on the part of the employer.
XXIX- action for claims arising from employment relationships, with a limitation period of five years for urban and rural workers, up to a limit of two years after the termination of the employment contract;
This provision deals with limitation periods in labor matters, which are 2 years after the termination of the employment contract (biennial limitation) and 5 years during the term of the contract (five-year limitation).
If, for example, an employee failed to receive a sum of money to which he or she would have been entitled six years ago, even if he or she maintained the employment relationship, he or she would not be able to recover the sum in court, as this right was affected by the five-year statute of limitations.
Similarly, if the employer has failed to pay wages, the employee whose contract was terminated more than two years ago and who has not filed a lawsuit will have his rights extinguished by the two-year statute of limitations.
XXX - prohibition of differences in salaries, in the performance of duties and in hiring criteria on grounds of sex, age, color or marital status;
The clause seeks to avoid discrimination against people in the job market, in order to give everyone the same opportunities, regardless of their physical or social characteristics.
XXXI - prohibition of any discrimination with regard to salary and criteria for hiring disabled workers;
Here too, the CF/88 emphasizes the principle of non-discrimination, ensuring that people with disabilities do not suffer discrimination because of their physical or mental restrictions.
XXXII - no distinction between manual, technical and intellectual work or between the respective professionals;
Once again, the principle of non-discrimination is being applied, and the CLT has a similar passage in its article 3, sole paragraph, according to which "there will be no distinctions regarding the type of employment or the condition of the worker, nor between intellectual, technical and manual work".
XXXIII - prohibition of night, dangerous or unhealthy work for minors under the age of eighteen and any work for minors under the age of sixteen, except as an apprentice from the age of fourteen;
Minors are not allowed to work in environments subject to special conditions that harm their health or physical integrity, given that minors do not yet have the physical and mental conditions to be subjected to such situations.
Furthermore, as night work is also more onerous than day work, minors are not allowed to work at night.
Minors aged between 14 and 16 can only be hired as apprentices, which is a special contract with mandatory intermediation by an educational institution.
XXXIV - equal rights for workers with permanent employment relationships and freelance workers.
Freelance workers are defined by social security legislation as those who provide urban or rural services to various companies, without an employment relationship, as defined in the [Social Security] Regulations. This is the case of coffee baggers, boat moorers, stevedores, etc.
Therefore, the freelance worker is not an employee, but this category has been extended the rights guaranteed to the worker with an employment contract.
Concluding the comments on art. 70 of the CF/88 is the current wording of its sole paragraph (amended by EC 72/2013), which lists the rights constitutionally guaranteed to the category of domestic workers:
Sole paragraph. The category of domestic workers shall be guaranteed the rights provided for in items IV, VI, VII, VIII, X, XIII, XV, XVI, XVII, XIX, XXI, XXII, XXIV, XXVI, XXX, XXXI and XXXIII and, subject to the conditions established by law and observing the simplification of compliance with tax obligations, obligations arising from the employment relationship and its peculiarities, those provided for in items I, II, III, IX, XII, XVIII, XXV and XXVIII, as well as their integration into social security.
We have systematized these sections in the table below, leaving in black the rights that were already included in the original wording of art.
Rights of domestic workers - art.
- Proteção contra despedida arbitrária (inciso I)
- Seguro-Desemprego (inciso II)
- FGTS (inciso III)
- Salário mínimo (inciso IV)
-Piso salarial (inciso V)
- Irredutibilidade do salário (inciso VI)
- Garantia do mínimo aos que percebem remuneração variável (inciso VII)
- Décimo terceiro salário (inciso VIII)
- Remuneração do trabalho noturno superior ao diurno (inciso IX)
- Proteção ao salário na forma da lei (inciso X)
Participação nos lucros ou resultados (inciso XI)
- Salário-família (inciso XII)
- Duração do trabalho não superior a 8h/dia e 44h/semanais (inciso XIII)
Jornada máxima 6 horas/dia para TIR (inciso XIV)
- Repouso semanal remunerado (inciso XV)
- Remuneração do trabalho extraordinário \(\geq 50 \%\) da hora normal (inciso XVI)
- Férias anuais remuneradas com \(1 / 3\) (inciso XVII)
- Licença à gestante (inciso XVIII)
- Licença paternidade (inciso XIX)
-Proteção ao mercado de trabalho da mulher (inciso XX)
- Aviso prévio (inciso XXI)
- Redução dos riscos inerentes ao trabalho - normas de SST (inciso XXII)
-Adicional de insalubridade, periculosidade e penosidade (inciso XXIII)
- Aposentadoria (inciso XXIV)
- Auxílio aos filhos e dependentes em creches e pré-escolas (inciso XXV)
- Reconhecimentos de ACT e CCT (inciso XXVI)
-Proteção em face da automação (inciso XXVIII)
- Seguro contra acidentes de trabalho (inciso XXVIII)
Prescrição bienale quinquenal (inciso XXIX)
- Proibição de diferença de salário por motivo de sexo, idade, cor, estado civil (inciso XXX)
- Proibição de discriminação em salário e critério de admissão do trabalhador portador de deficiência (inciso XXXI)
Proibição de distinção entre trabalho manual, técnico e intelectualou entre os profissionais respectivos (inciso XXXII)
- Proibição de trabalho noturno, perigoso e insalubre a menores de 18 e de qualquer trabalho a menores de 16 (inciso
XXXIII)
Igualdade de direitos entre empregado e trabalhador avulso (inciso XXXIV)
Before we close on the topic of workers' constitutional rights, it is worth commenting on a provision that is not listed in art. 70, but which may be covered in exams.
This is Article 11, which makes it compulsory for employees and employers to reach a direct agreement, through an elected employee representative. However, this will only be mandatory for COMPANIES with MORE than 200 employees:
・
CF, art. 11: In companies with more than two hundred employees, the election of an employee representative is guaranteed for the exclusive purpose of promoting direct understanding with employers.
CF, art. 11: In companies with more than two hundred employees, the election of an employee representative is guaranteed for the exclusive purpose of promoting direct understanding with employers.
Part of the doctrine believes that, by means of the labor reform law, the CLT began to regulate Article 11 of the Federal Constitution:
CLT, art. 510-A. Companies with more than two hundred employees are guaranteed the election of a committee to represent them, with the aim of promoting direct understanding with employers.
This provision therefore regulates the constitutional provision that makes it compulsory for employees and employers to reach a direct agreement, through elected employee representatives. However, this situation will only be mandatory in COMPANIES with MORE than 200 employees.
Other constitutional provisions regarding workers will be studied in due course.
RESENDE, Ricardo. Schematized Labor Law. 5th ed. 2015, p. 24.
5 The subjects of "Waiver and Transaction" will be dealt with in another topic.DELGADO, Mauricio Godinho. Op. cit., p. 139. DELGADO, Mauricio Godinho. Op. cit., p. 151. - 3 DELGADO, Mauricio Godinho. Op. cit., p. 165
Law 8.036/90 [FGTS Law], art. In the event of dismissal by the employer without just cause, the employer shall deposit, in the worker's FGTS account, an amount equal to forty percent of the amount of all deposits made in the account during the term of the employment contract, monetarily restated and plus the respective interest.
CF/88, art. 22. It is the exclusive responsibility of the Union to legislate on:
I - civil, commercial, criminal, procedural, electoral, agrarian, maritime, aeronautical, space and labor law;
(...)
Sole paragraph. A complementary law may authorize the states to legislate on specific issues relating to the matters listed in this article.