Ariadne Fabiane Velosa Cavalcanti
Lawyer at Marcos Martins Advogados
The employment relationship is characterized by the fulfillment of certain requirements, as established by article 3 of the Consolidation of Labour Laws (CLT): “Any individual who provides services of a non-occasional nature to an employer, under the employer’s dependence and for a salary, is considered an employee”.
In this sense, in order for the employment relationship to be characterized, the following are necessary: service provided by an individual, personal nature, non-occurrence, subordination and onerousness. If any of these conditions are lacking, the employment relationship does not exist.
The classic concept of subordination has a subjective basis, requiring a direct relationship between employer and employee. It is understood as a state of real dependence created by a right, the right of the employer to command, to give orders, which gives rise to the corresponding obligation for the employee to submit to these orders.
The concept of structural subordination, on the other hand, arose with the flexibilization of forms of work, since the evolution of technology and instantaneous data transmission made it possible for subordination to exist without the necessary direct order from the employer, who is only responsible for organizing production.
Professor Mauricio Godinho Delgado defines structural subordination as follows:
“Structural subordination is, therefore, the subordination that is manifested by the insertion of the worker in the dynamics of the service taker, regardless of whether or not he receives his direct orders, but structurally welcoming his dynamics of organization and functioning”[1].
Thus, Brazilian jurists state that for structural subordination to be characterized, it is enough for the activity carried out by the employee to be essential to the functioning of the company’s organizational structure, regardless of whether there is strict control, supervision or submission as to how this activity is carried out.
In view of this, the theory of structural subordination is objective in nature and does not require the employee to be subject to the employer’s directive powers in order for the employment relationship to be characterized. It determines as subordinate any worker who is part of the dynamics of the activity, whose function is essential to the company’s structure, even if they have autonomy to carry out this activity, and it is irrelevant whether the services are provided in the middle or end activity of the employer.
There are currently many cases in the Labor Courts in which the employment relationship is recognized because structural subordination is recognized, such as in the case of manicurists and beauty salons, self-employed drivers, i.e. those who own the truck but provide services to companies, among other cases.
It so happens that in May 2021, in a judgment by the 4th Panel of the Superior Labor Court, a decision was handed down that ruled out the recognition of the employment relationship between a real estate broker and two companies in Rio de Janeiro and Vitória, on the grounds that in order for the employment relationship between a company and a worker to be recognized, there must be legal subordination, and not just mere structural subordination[2].
The court held that the fact that companies set guidelines for workers and measure results did not imply the existence of structural subordination.
The rapporteur of the appeal, Justice Caputo Bastos, pointed out that the elements that characterize the employment relationship are those set out in article 3 of the CLT, and if any of these requirements are absent, there is no employment relationship, but rather an employment relationship. He pointed out that the fact that real estate agents set guidelines and demand results does not characterize legal subordination.
It should be noted that the Labor Reform (Law No. 13,467/17) , in order to guarantee greater legal certainty in these cases, included article 442-B in the CLT, which states that the hiring of a self-employed worker, once the legal formalities have been complied with, removes the status of employee.
Thus, the law signals that the existence of an employment relationship always requires the presence of legal subordination, i.e. the application of the classic concept of subordination, in addition to the other requirements of the employment relationship, an application used by Justice Caputo Bastos in the recent TST ruling.
In view of this, it is highly recommended that companies invest in quality legal advice to bring their cases into line with current legislation, which Marcos Martins Advogados is able and prepared to offer.
[1] DELGADO, Mauricio Godinho. Fundamental rights in the employment relationship. LTr Magazine, São Paulo, LTr, ano 70, n. 6, p.657-667, jun. 2006.
[2] BRAZIL. Superior Labor Court (4th Panel). Review Appeal 181500-25.2013.5.17.0008. Interlocutory Appeal filed by the Defendants. Employment Relationship. Elements. Fulfillment. Real Estate Broker. Regional Decision Based on Structural Subordination. Possibility of Eventual Replacement of the Claimant. Granted. Available at: https://www.conjur.com.br/dl/tst-acordao-vinculo-emprego-corretor.pdf. Accessed on July 15, 2021.
