Decree 10.854 was published on November 11, 2021, regulating labor legislation at the administrative level and establishing the Program for Consolidation, Simplification and Debureaucratization of Infralegal Labor Standards.
Considered to be the Infralegal Labor Regulatory Framework, the decree revised and consolidated more than a thousand acts, including ordinances, normative instructions and decrees, and more than 30 decrees were revoked.
It is important to note that the decree did not modify any provisions of the Consolidation of Labor Laws (CLT), but merely sought to simplify and unify the guidelines, so that all employees and employers are aware of the rules, ensuring their compliance and also making it possible to monitor and review the normative acts every two years.
The wording of this decree highlights the new regulatory system for reviewing and consolidating labor rules at the administrative level, which will aim not only to modernize, but also to make labor rules popular and more accessible to workers.
With the establishment of the Permanent Program for the Consolidation, Simplification and Debureaucratization of Infralegal Labor Standards, labor standards at the administrative level will be organized and compiled, divided into the following themes: a) labor legislation, labor relations and public labor policies; b) occupational safety and health; c) labor inspection; d) procedures for fines and appeals of administrative labor processes; e) conventions and recommendations of the International Labor Organization – ILO; f) regulated professions; and g) administrative standards.
The decree also contains rules on the electronic recording of working hours, the labor inspection book, transportation vouchers, food vouchers, occupational medicine and safety, as well as ratifying the legislation on outsourcing.
In order to prevent possible fraud, the decree deals with the necessary and indispensable requirements for the validity of the electronic workday record, supported by article 74 of the CLT.
Thus, in order to be considered valid, electronic equipment must meet minimum compliance requirements, such as not allowing the alteration or deletion of recorded data, as well as ensuring that the equipment does not present any restrictions on marking the worker’s correct working hours. It also made it possible to pre-sign the break period and use the point by exception.
With regard to the Labor Inspection Book, provided for in article 628, paragraph 1, the decree regulates the migration to electronic form, through eLit, with the aim of expanding its functionality to also include consultations on labor legislation, risk assessment in terms of work safety, as well as facilitating the payment of fines and the issuing of certificates and informing companies of the acts performed and decisions handed down in labor administrative litigation, with the company also being able to file a defense and appeal electronically in the records of these proceedings.
With regard to transport vouchers, the decree made it clear that only domestic workers can be paid in cash, and that for other employees, use must be restricted to paying for public transport and not for private transport, and that transport must be provided for the worker’s entire journey.
In other words, the transport voucher cannot be used to reimburse employees who need to travel to the company or return to their homes by individual public transport such as Uber, cabs and other apps, and these amounts must be reimbursed on the payroll.
The decree also introduces new rules for the Workers’ Food Program – PAT, which is regulated by Law 6.321/76 and aims to encourage companies to take care of their employees’ nutritional health: (i) benefits granted equally to all workers; (ii) provision for a program to promote and monitor workers’ health and food safety; (iii) payment of meal/food vouchers in open or closed payment arrangements; (iv) prohibition of discounts when contracting meal or food vouchers; and (v) optional portability.
In addition to requiring that companies benefiting from the PAT grant the same amount to all their employees, a professional qualified in nutrition must be hired to act as the PAT’s technical manager.
In the case of providing food services, the Decree establishes that companies benefiting from the PAT must monitor the food and nutritional safety of their employees, and that a joint act by the Ministries of Labor and Health must be complied with.
Under the terms of the decree, there is a prohibition on applying a discount or rebate on the amount contracted for the supply of food to workers or the provision of means for acquiring food.
It also stipulated new limitations on the amount deductible under the PAT:
- Deduction only applicable to amounts spent on workers earning up to 5 minimum wages, but may include all workers of the beneficiary company, if the company provides its own meal service or distributes food through collective feeding entities;
- Deduction will now cover only the portion of the benefit that corresponds to a maximum of 1 minimum wage.
Another important point is the ratification that the funds transferred to the worker in a payment account for use within the scope of the PAT cannot be withdrawn, the exception being only in the event of contract termination, in the form of item III of art. 174.
Also, with regard to occupational safety, the topic addressed was the certificate of approval for personal protective equipment. On this point, the concern was to protect workers, given that personal protective equipment can only be sold if it has a certificate of approval, which must be issued by the Labor Department of the Ministry of Labor and Social Security
The decree also regulates the receipt of complaints about labor irregularities and requests for inspection through electronic channels, guaranteeing confidentiality, all with the aim of ensuring that labor inspection planning acts strategically to prevent accidents at work, occupational diseases and minimize labor irregularities.
Still on the subject of health and safety, the decree deals with the guidelines for drafting and reviewing occupational health and safety regulations, aiming to reduce bureaucracy and simplify existing guidelines so that they can be implemented in a sustainable manner by employers, in order to strike a balance between protecting workers’ health and free enterprise, prioritizing situations of high occupational risk and serious accidents.
Articles previously covered in Law 6.019/74 that refer to the outsourcing of services were also reiterated, emphasizing that the employment relationship between the employee of the service provider and the borrower will only be recognized when labor fraud is evidenced, so that if fraud is not found, the discussion will only be against the service provider.
In order to clarify two commonly confused issues, the decree took care to distinguish more clearly and objectively – fulfilling its mission – between outsourced work and temporary work, while also establishing the rights and duties of temporary employees, their employers and service providers.
It is also important to mention that the decree came into force on December 12, with the exception of articles 174, 177 and 182, which will come into force 18 months after the date of their publication, which took place on November 11, 2021.
Finally, it is highly recommended that companies seek legal advice on the correct application of the legislation, which Marcos Martins Advogados is able and prepared to offer.
