Luara Rezende
Lawyer at Marcos Martins Advogados
On March 28, Provisional Measure No. 1108 was published, providing for the payment of food allowances, amending Law No. 6,321/1976 and the Consolidation of Labor Laws.
With regard to the food allowance, the new rule limits the use of the benefit exclusively to the payment of meals in restaurants and similar establishments or to the purchase of foodstuffs in commercial establishments.
Inadequate execution, deviation or distortion of purpose in granting or contracting the benefit may result in fines for the employer, beneficiary company or companies issuing payment instruments, and cancellation of registration in worker food programs.
It is important to note that companies must comply with the new rules when renewing current contracts, signing new contracts or after 14 months have passed, whichever comes first. They will also not be able to renew contracts that do not comply with the new rules.
Another point worth highlighting is the possibility of double deduction of expenses proven to have been incurred during the period in worker food programs (PAT).
In terms of amending the Consolidation of Labor Laws, the Provisional Measure brought in a new concept of teleworking, highlighting that this type of work will be considered to be the provision of services away from the employer’s premises, even if in a non-predominant way, using information and communication technologies, which, by their nature, do not constitute external work. This means that remote or hybrid work are forms of teleworking and, as of the publication of this Provisional Measure, will be part of the Chapter that regulates this type of activity.
However, in addition to regulating hybrid work, it brought a significant change to the dynamics previously established, the need to control working hours in such modalities. This is because it also amended item III of article 62, stating that only employees working remotely who provide services by production or task are exempt from working time control.
This means that for all companies that have adopted teleworking due to the pandemic or for any other reason where there is provision for working hours (Monday to Friday, from 8am to 5pm), there will be a need to control their employees’ working hours again.
Likewise, for companies that have adopted hybrid working hours, the employee will have to clock in.
The provisional measure also brought an innovation, allowing the adoption of teleworking for trainees and apprentices.
Another point worth highlighting is that, as of the publication of the provisional measure, it has been defined that the Collective Bargaining Agreement or Collective Agreement relating to the territorial base of the establishment where the employee is based will apply to employees working remotely, i.e. the collective bargaining agreement relating to the territorial base of the CNPJ to which the employee is linked will be adopted.
In the case of employees who choose to carry out their activities outside the country, Brazilian legislation will apply, insofar as it does not conflict with Law 7,064/1982. Furthermore, if the activities are carried out away from the location provided for in the contract, the expenses resulting from the return to face-to-face work will be borne exclusively by the employee.
Finally, employers must give priority to employees with disabilities and to employees with children or children in their care up to the age of four.
The rules highlighted here will only be permanently in force if the provisional measure is converted into law. Therefore, companies need to adapt to the new rules immediately, and it is certain that if the measure is not converted into law or if the text is changed when it is, there will be a need for a new assessment and possible readjustment.
