Fernanda Grasselli de Carvalho
Lawyer at Marcos Martins Advogados Associados.
Introduction
The purpose of this study is to analyze the institute of “teleworking”, in view of the impact of Law 12.551/2011, which amended article 6 of the CLT, making it possible to work remotely, using technologies and telematic means.
Although the law that changed the wording of article 6 of the CLT dates back to 2011, it is undeniable that the transformations that have taken place in society have had numerous current effects, since it has enshrined the possibility of remote working through the use of technology.
Against this backdrop, the aim of this article is to analyze Law 12.551/2011 and its influence on employment relations, while also understanding the importance of “teleworking”, which has become increasingly common in the business world.
Law 12.551/2011 and its role in modifying Article 6 of the CLT
Over the years, technology has increasingly had a number of impacts on social life.
In labor/employment relations, this impact has increasingly occurred, leading to legislative changes, doctrinal and jurisprudential understandings.
From this point of view, there is no doubt that technology has changed work in Brazil and around the world, contributing to the emergence of a new type of work, linking employer and employee through telematic means of communication.
For example, with the advent of the Internet, in many business activities it has become possible for workers to carry out their tasks at home, in the comfort of their own homes.
Of course, this privilege is not general, as it is not possible for all workers to perform their duties using technology. But it is true that technology has brought the possibility of interconnection between employee and employer through the use of communication.
This activity is often carried out by technology professionals, lawyers, researchers, among others, emphasizing that there must be compatibility between what is being developed and the use of telematic means, which allow such distancing, without interfering with the smooth running of the business activity.
In view of this technological scenario and its direct implications for labor law, we must point to the creation of Law 12.551/2011, which amended article 6 of the CLT, in such a way as to provide for work carried out outside the employer’s establishment, based on the presence of the aforementioned telematic or computerized means of communication, a provision that until then did not exist in the current legal system.
The previous text of the CLT stated that:
Art. 6 No distinction shall be made between work carried out in the employer’s establishment and that carried out in the employee’s home, provided that the assumptions of the employment relationship are characterized (BRASIL, 1943).
Within this rule, until the legislative change, there was an understanding that there should be no difference between work carried out on the employer’s premises and work carried out at home. Only work carried out at the employee’s home was recognized. However, with this important change, remote work was equated with work carried out at the employer’s place of business, and Article 6 of the CLT now reads as follows:
Art. 6 No distinction shall be made between work carried out at the employer’s establishment, that carried out at the employee’s home and that carried out at a distance, provided that the assumptions of the employment relationship are characterized.
Sole paragraph. Telematic and computerized means of command, control and supervision are equivalent, for the purposes of legal subordination, to personal and direct means of command, control and supervision of the work of others (BRASIL, 1943).
One of the main new features of the amendment imposed by Law 12.551/2011 is the inclusion of remote work, without any distinction being made between work carried out in the employer’s establishment and work carried out at home.
It is true that in order to characterize such an occurrence, all the assumptions of the employment relationship must still be present for the effective characterization of the employment relationship in this new type of work, as provided for in articles 2 and 3 of the CLT.
The wording of Article 6 of the CLT resulted in direct work carried out by the employee being equated with remote work, where the employer exercises direct and personal control over the employee since it uses communication and computerized means to exercise the requirement of subordination.
However, it should be clarified that according to the new wording, communication and computerized means are only equivalent to direct control for the purposes of legal subordination (VALLE, 2012, p. 9).
Thus, there is talk of the new concept of legal subordination, where the employee, even if he performs his services outside the employer’s establishment, will still meet the requirements for the characterization of the employment relationship, since he uses telematic or computerized means of communication.
The use of cell phones, notebooks or any other communication technology by the employee, even when carrying out their work activity outside the employer’s establishment, will be characterized as employment, generating all its employment effects.
The wording of Article 6 of the CLT, following the advent of Law 12.551/2011, was effectively aimed at modernizing society, since new means of communication have emerged, and it is essential to reread standards already established by law, as is the case with teleworking.
The creation of so-called teleworking and the recognition of subordination by telematic and computerized means have even contributed to doctrinal pacification, clearly demonstrating the possibility of characterizing an employment relationship in the distance work relationship, when the assumptions set out in the CLT are present.
Teleworking
There is no doubt that teleworking, which is a type of remote working due to the use of technology, was the result of the process of introducing technology into the workplace.
Teleworking is a type of remote work, typical of modern times, in which technological advances allow work to take place away from the employer’s premises (usually in the employee’s own home), while maintaining contact with the employer through electronic and computer resources, mainly computers and the internet (GARCIA, 2012, p. 107).
It should be pointed out that teleworking is characterized by distance, without mentioning that the work has to be carried out at the employee’s home. In addition, remote work includes both teleworking and home working, but there is a differentiation, since teleworkers can carry out their activities at home, without characterizing a home working relationship.
In teleworking, there is the presence of all the necessary requirements for the characterization of the employment relationship, evidencing legal subordination, since in the case in question, it will have differentiation, due to the control carried out by the employer through technological devices.
Teleworkers have all the same rights and duties as any other employee, since their activity differs only in that it is adapted to the technological reality of the working environment.
Despite the new provision in Art. 6 of the CLT, there is no complete regulation on the subject, and the legal basis on the teleworking modality is not in-depth, lacking effective jurisdictional protection, which provides for a real legal labor situation.
It is true that teleworking is a flexibilization of the employment contract, due to the advent of new technologies in the communications and IT sector.
Teleworking stems from the technological evolution of society as a whole, capable of changing labor standards, which have adapted to the current reality, thus resulting in beneficial changes for both parties in the employment relationship.
Final considerations
In view of the importance of technology in human life, as well as its influence and the transformation it has brought about, the CLT has also changed, given the wording of Law 12.551/2011.
It is well known that remote working has become increasingly common in labor relations, so that the flexibilization of Labor Law has contributed to the possibility of employees carrying out their activities outside the business context, using technological resources.
It should be reiterated that the employment relationship is maintained, as is the case with the traditional employment relationship already enshrined in law, and it is clear that there is no distinction in fundamental guarantees simply because technology is introduced into this environment.
It is clear that the legislative position on teleworking still needs to be better understood, as some points are vehemently debated, such as overtime, paid weekly rest, among others.
However, there is no doubt that the legislative position of adapting transformations in the social environment to the legal context is correct.
References
DALLA VALLE, Fernanda. Considerations on the Changes to the Wording of Article 6 of the CLT Imposed by Law 12.551/2011. Cadernos do Programa de Pós-Graduação em Direito-PPGDir./UFRGS, v. 7, n. 1. Available at: <http://www.egov.ufsc.br/portal/sites/default/files/consideracoes_sobre_a_alteracao_da_redacao_do_artigo_6o_da_clt_impostas_pela_lei_12.551_2011.pdf> Accessed on: 20 Feb. 2015.
GARCIA, Gustavo Felipe Barbosa. Manual of Labor Law. 5. ed. rev. and current. São Paulo: Método, 2012.
