Legality of intermittent work in Brazil

Published 12 September 2019 by Montgomery & Associados

On August 2019 the 4th Panel of the Brazilian Superior Labour Court (TST) dismissed the claim brought by a store assistant to have his intermittent employment agreement with a retail chain being declared “as an employment agreement for an indefinite term”, with the consequent payment of full salary for the entire period. This decision was issued in labour claim N. 10454-06.2018.5.03.0097.

The employee, in the labour claim, filed, applied for his intermittent hiring (“zero-hour contract”) to be declared null and void “for violating the employment regime, human dignity, commitment to professionalization and the minimum level of protection due to people who need to live from their work”.

The claim was initially rejected by the 4thLabour Court of Coronel Fabriciano/MG, since the type of hiring modality was within the parameters of the law, amended by the Labour Law Reform in November 2017, to expressly include the modality of an employment agreement under the intermittent regime. The Plaintiff filed an Ordinary Appeal before the Appellate Court, which was fully granted by the Regional Labour Court (TRT) of the 3rd Region (MG), which ordered the retail company to pay salary differences for the whole employment period based on the hourly rate multiplied by 220, corresponding to the full monthly workload, on the grounds that “it is not appropriate to use an intermittent contract for effective job position within the company”. The TRT of the 3rd Region also pointed out that, following the Labour Law Reform, the intermittent regime is indeed lawful, but that it should be applied only exceptionally, otherwise it would represent the precariousness of workers’ rights.

The defendant retail company filed a Review Appeal with the TST, and the Justice Rapporteur of the 4th Panel (Ives Gandra Filho) stated that, according to the parameters of the law, intermittent work can be conducted for any activity, except for airline crew, as long as duly observed the hourly wage for other non-intermittent workers of the company. In his opinion, the TRT has created parameters and limitations not contained in the Brazilian Consolidation of Labour Laws (CLT): “By contrasting the regional decision with the aforementioned legal commands, the noncompliance with the principle of legality could not be more evident.”

The panel unanimously granted the appeal to reinstate the first instance decision.

Thus, having to regard the conclusion of the highest labour court in the country, it can be concluded that the intermittent work, whether for small, medium or large companies, tends to spread and become more routine, given the legal certainty conferred by the recent TST decision. This decision may be also an indication of the acceptance by the TST of some of the significant legislative changes introduced by the Labour Law Reform into the legal system, as has already happened, for example, with working hour control by exception (and, therefore the validity of the collective bargaining) and the requirement of prior express authorization by the employee for the deduction of union dues­⁶.