What to anticipate from the Labor Reform in 2023 — and the impacts on small companies

What to anticipate from the Labor Reform in 2023 — and the impacts on small companies

Lawyer Roberto Baronian explains what can change in labor legislation from next year

Dealing with Brazilian labor legislation is absolutely not an easy task.

For obvious reasons, we cannot become insensitive to the need for an efficient normative set that offers guarantees, protections and good social conditions to workers, in the different faces and evolutions of labor relations.

In any case, for those who work in the area, it is easy to see that, in general terms, labor standards are highly detailed, casuistic and often suffer from somewhat biased interpretations, intertwining themselves in a tangle of rules and consequences that are difficult to predictability and weighting.

All, it is worth noting, in an imperative regulatory environment, coercive and whose rules are largely considered in advance as unavailable to private negotiation.

Without forgetting the need to avoid generalizations, binary positions and utopian solutions, it is to be considered that a regulatory scenario like this has a great potential to generate a lack of trust between the actors and entities of labor relations and a chronic legal uncertainty, including by account of a jurisprudence that is often unusual in relation to the text of the law.

Trying to establish predictions for new labor law texts is almost always quite a challenge.

And this, especially for micro and small companieswhich are precisely those that generate the most jobs in the country, is somewhat harmful and counterproductive.

Opportunistic and/or opportune, depending on the point of view, the initially labor “mini-reform” of 2017 quickly turned into a “max-reform”. More than 100 legal labor provisions were modifiedin numerous matters and different spheres, reaching individual, collective, union rights and applicable rules of labor lawsuits.

From basic contractual rules, such as possibility of splitting vacations and the establishment of new guidelines about what should be computed as workdayto more systemic issues such as:

  • labor definitions and responsibilities of partners and companies that are part of an economic group;
  • regulation of outsourcing and strengthening of collective bargaining (the so-called “prevalence of negotiated over legislated”);

The fact is that the breadth of the labor reform and the diversity of its matters and regulations make it practically impossible to judge it in a generalized way, treating it as a single and indivisible act.

This, by itself, and without considering political and ideological aspects, already suggests that it is not very sustainable, at least from a logical and systemic point of view, that a complete “revocation” of the labor reform by the new Lula government, initially aired in the electoral campaign , come, in fact, happen.

The “reform” of labor reform: what can change

According to media coverage of the issue, what was previously called “repeal” is now called “revision”, “adjustment” and even “adaptation” of the labor reform.

application workers

The latest news points out that one of the focuses is the need to establish regulation and some level of protection for app workers.

The topic is really very sensitive. If, on the one hand, this new work model does not conform to the traditional format of the employment relationship, on the other hand, it leaves the worker outside any minimum social protection system, which cannot be ignored.

freelance work

Another focal point is the intermittent employment contract review🇧🇷

Defended at the time from the perspective of formalizing the work of “freelancers” and other intermittent activities, such as, for example, services in event areas, this new hiring modality created by the labor reform contradicted the classic model conceived until then. by labor law, based on a previously defined working day, worked or available to the employer, upon payment of a previously adjusted salary.

In the intermittent contract, the work is carried out through calls, alternating periods of inactivity, without a minimum guarantee of volumes and demands. The worker is paid only for the days worked, if and to the extent that he works.

As reported, the intention is to restrict this modality to some sectors of the economy. However, would it really be the case that the law would forcefully establish which economic activities demand intermittent work? In any case, it is worth remembering that the constitutionality of the intermittent employment contract has been questioned and is pending judgment by the Federal Supreme Court.

Changes in unions

Finally, the news points to a possible intervention in issues of collective and trade union rights, in the sense of strengthening the work of trade unions, in reversing issues for which the labor reform of 2017 facilitated individual negotiation — bank of hours, for example.

The return of the compulsory union contribution, at first, is not being discussed, but there is talk of the need to strengthen the fixing of contributions to the union, approved in assemblies within the scope of the edition of collective norms (conventions or collective bargaining agreements), the charge of all workers represented in the negotiation.

The labor reform, in principle, vetoed the publication of collective norms that remove from workers the right not to suffer, without their express and prior consent, any salary charge or deduction established in a collective agreement or collective bargaining agreement.

The desired union reform, with the implementation of union freedom, remains unforeseenwith the regime of union unity in effect (one union per category and territorial base, with no possibility of free choice by workers).

In any case, collective bargaining continues to be an essential instrument for preventing and pacifying labor conflicts, which must always be privileged.

In short, countless themes and matters may be included in the agenda for changes in labor legislation.

However, it is worth considering that excessive, interventionist and meticulous laws, in addition to not being able to keep up with the evolution and dynamics of labor relations and not contemplating the peculiarities of each economic and professional sector, do not guarantee, by themselves, the protection of worker.

Alongside political and ideological interests, there are spaces and demands for modernization, especially for regulatory simplifications, without prejudice to the maintenance of essential and necessary social guarantees, with improvement of business environments and strengthening of legal certainty, basic elements to facilitate the generation of employment and income.

Source: Exam

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