Fernanda Grasselli de Carvalho
Lawyer at Marcos Martins Advogados.
Introduction
On July 1, 2014, Ordinance 789 of the Ministry of Labor and Employment, No. 789 of April 2, 2014, published in the Federal Official Gazette on June 3, 2014, came into force in Brazilian law.
This Ordinance brought about an important legislative innovation in the labor field, especially in matters concerning temporary employment contracts, which can now be extended for up to nine months, the term for hiring temporary workers to replace regular and permanent staff.
In general terms, until the advent of this new rule, temporary employment contracts, both to replace regular and permanent workers, as well as in cases of extraordinary increases in services, could only be extended for three months, which could be extended for a further three months, limiting them to a maximum of six months.
In view of the latest novelty in labor law, this study seeks to understand the legal hypotheses for the temporary hiring of workers, as well as the impact that this new rule will have on labor and employment relations.
Legal definition of temporary employment contracts
Before understanding the legislative innovations regarding the subject under study, it is important to highlight the legal basis of this labor law institute.
Temporary work is regulated by Law No. 6.019, of January 3, 1974, and until then regulated by Decree No. 73.841, of March 13, 1974. As already mentioned, there has recently been a change in the rule, through Ministry of Labor and Employment Ordinance No. 789 of March 2, 2014, which revoked Ordinance No. 550/201.
This type of contract is not to be confused with a probationary contract. Firstly, temporary employment contracts are governed by a special law, unlike probationary contracts, which are governed by the CLT.
In a temporary work contract, the employee is a collaborator of a specific temporary work company, even though they provide services at the establishment of the service taker or client. In a probationary contract, the employee works on the employer’s premises (MARTINS, 2010, p. 158).
Going further, Martins (2010, p.158) defines it this way:
The temporary worker is the individual hired “by a temporary work company, to provide a service intended to meet the transitory need to replace regular and permanent staff or an extraordinary increase in the tasks of other companies”.
It can be seen that the illustrious writer makes it clear that the temporary worker must be hired by a temporary service company, and its main objective is to meet the needs of a transitory nature of “replacing regular or permanent staff, or in the event of extraordinary work on tasks”.
In addition, article 10 of Law No. 6.019/74 states that the temporary worker must be an employee, and that the same employee may not be hired for more than three months. It is worth noting that the new law changed this rule, as will be discussed below.
Also with regard to the temporary employment contract, the law stipulates that the worker will carry out their activities for the company that takes on the service or the client, within a pre-established period, and in this case, must charge a price for doing so, including the worker’s social charges, linked to their remuneration.
It is clear that the temporary work contract is governed by a triangular format, with the temporary work company, the borrower or client and the temporary worker at each corner of this format.
It is worth remembering that current legislation, through the Ministry of Labor’s Normative Instruction No. 574/2007, allows temporary workers to be hired in two cases: the temporary need to replace regular and permanent staff has exceeded the period initially set; and the circumstances that generated the extraordinary increase in services and gave rise to the temporary employment contract have been maintained.
As for the labor rights that exist in temporary employment contracts, not all of them are guaranteed. In this sense, Delgado (2012, p. 210) states:
The temporary worker does not, however, have all the rights that are guaranteed by the CLT, but in accordance with the provisions of Law No. 6.019/74, he is therefore still an employee, but a special employee, with rights limited to special legislation.
The Federal Constitution guarantees equal rights for workers with an employment contract, permanent workers and freelance workers, numerous rights for domestic workers, as well as rights for public servants. However, it mentions nothing about the rights of temporary workers, and makes no exceptions in their favor.
On the other hand, Article 12 of Law No. 6.019/74 takes care to state the advantages applicable to temporary workers: pay equivalent to that received by employees in the same category as the company that takes over the work or the client; eight-hour working day, with overtime paid; proportional vacations; paid weekly rest; additional night work; indemnity for dismissal without just cause or normal termination of the contract; insurance against accidents at work and social security protection.
Given these advantages attributed to temporary workers, and their conceptualization presented, we now turn to an analysis of Ordinance No. 789 of April 2, 2014, which changed the length of employment.
Ordinance No. 789 of April 2, 2014: Changes to Temporary Employment Contracts
Ordinance No. 789 of April 2, 2014 has been in force since July 1, 2014, changing the maximum duration of temporary employment contracts from six months to nine months.
The Ministry of Labor and Employment’s intention with this change is to benefit both employers and employers, since in many cases the six-month period was not enough to meet certain needs.
Even so, the rule for hiring a temporary worker remains the same: to meet the needs of a transitory nature of “replacing regular or permanent people, or in the event of extraordinary work tasks”.
Given this new scenario, temporary contracts can last up to nine months. In addition, another novelty that has emerged from this new Ordinance refers to the deadlines that the temporary employment company has to request authorizations for extensions through the TEM website, in accordance with the instructions provided in the Temporary Employment Company Registration System – SIRETT, as follows: in the case of a temporary employment contract (longer than three months), the request for authorization must be made at least 5 days before it begins; in the case of an extension of a temporary employment contract, the request for authorization must be made up to 5 days before the initially planned end date.
In addition, the Ordinance also states that the extension of a temporary employment contract does not require authorization from the MTE’s regional body if, when added to the initial duration of the contract, it does not exceed three months.
All this analysis will be carried out formally and objectively, through documents and statements provided by the applicants, which will not imply any kind of liability for the granting authorities if the conditions presented differ from the information provided by the applicant.
Final considerations
The new Ordinance on temporary employment contracts has had a significant impact on the labor market.
This is a step forward for companies, as they will have a longer period of time at their disposal to meet their employers’ needs. This new rule only reflects the reality of the labor market, since most of the time the previous period was not enough.
Finally, it should be noted that these changes demonstrate the clear intention of the Labor Law rules to make relations between Employer and Employee more flexible, seeking the evolution of both and warming up the market. Temporary employment contracts are extremely important for legal and business relations, since in addition to being a source of labor for seasonal segments, they often serve as a job provider, or even a professional’s gateway to the job market.
References
DELGADO, Maurício Godinho. Course in labor law. São Paulo: LTr, 2012.
MARTINS, Sérgio Pinto. Labor Law. São Paulo: Atlas, 2010.
