Sub-legal labor regulatory framework – Decree 10.854: main points

The government has promoted the consolidation of more than a thousand ordinances, decrees and infra-legal acts in a text of 188 articles called the regulatory framework for infra-legal work.

Decree 10854 was signed on the 10th by President Jair Bolsonaro. The vast majority of devices take effect 30 days after publication. Only the effectiveness of some of the food stamp measures, including portability, will take longer – 18 months.

The specialists interviewed by Gazeta do Povo underline that the initiative brings advantages such as the regrouping, in a single text, of the rules which were previously disseminated.

“This should make life easier for employers and workers, by bringing together the rules that were previously laid down”, underlines Karolen Gualda, coordinator of the work pole of the Natal & Mansur Advogados Associados office.

Otávio Torres Calvet, judge at the Regional Labor Court of Rio de Janeiro (TRT-RJ) and visiting professor in postgraduate courses, believes that there has been no backsliding in the legislation with the signing of the decree. “There has been no deconstruction of labor laws,” he says.

The aim of the measure, he said, was to cut red tape and streamline the rules, making life easier, especially for micro and small businesses, which are among the country’s largest employers.

But there are also controversial points in this consolidation. Among them, the end of the inspection power of the prosecutors of the Public Ministry of Labor (MPT) and the reduction of tax advantages for the payment of food stamps under the Worker’s Food Program (PAT).

See below the main points of the regulatory framework for sub-legal work:

Simplification of infra-legal labor standards

The regulatory framework for infra-legal labor creates the permanent program for the consolidation, simplification and debureaucratization of infra-legal labor standards within the framework of the Ministry of Labor and Social Security.

One of the main objectives is to promote respect for infra-legal labor standards. It also seeks to simplify and reduce bureaucracy in labor rules, respecting labor rights and reducing costs for businesses.

Labor inspection book in electronic format (eLIT)

The Ministry of Labor and Welfare will make the labor inspection book available to all companies that have or do not have employees.

Access will be free and will also apply to liberal professionals, leisure associations and other non-profit institutions which admit workers as employees. Micro and small businesses can join the eLIT by registering.

The main objectives are:

streamline and simplify compliance with social and non-fiscal obligations imposed by tax legislation; eliminate unnecessary or overlapping formalities and requirements; and standardize and ensure transparency of procedures, ensuring compliance with labor and social security legislation, including workers’ health and safety standards.

Monitoring

The inspection of labor standards was one of the elements most affected by the infra-legal labor regulatory framework. It becomes a specific attribution of the auditors of the Ministry of Labor.

The measure displeased the prosecutors of the Public Ministry of Labor (MPT), who also had this competence. According to “Folha de S. Paulo”, the National Association of Labor Lawyers (ANPT) intends to challenge the decree.

Calvet, of the TRT-RJ, specifies that the decree emphasizes a more strategic and preventive action. “The objective of the Labor Code is to promote the quality of life of the worker and to avoid irregularities.

The measure also prohibits assessment based exclusively on manuals, technical notes and circular letters from the Ministry of Labor, or based on doctrine and jurisprudence. The assessment can only be based on legal or infra-legal provisions. “This ends up promoting legal certainty,” explains Karolen.

Regulatory standards for occupational health and safety

The decree establishes that the guidelines of the regulatory standards of safety and health at work will be the dignity of the human person, the social value of work, the enhancement of work, the free exercise of economic activity and the pursuit of full employment. .

The standards must be technically or scientifically based, updated according to technological development and compatible with Brazilian and international regulatory frameworks. Their content should be simplified and less bureaucratic, and the state should assume a subsidiary and exceptional role of intervention.

individual protection equipment

Personal protective equipment can only be sold after obtaining the approval certificate, which will be issued via a simplified electronic system.

The information provided as well as the documentation and reports submitted will be the responsibility of the applicant and will be taken into account for the purpose of issuing the certificate.

trip control

Companies will be able to opt for new technologies to control the working day, such as cell phones, digital or facial recognition, specialized software. “This is not new,” Natal & Mans coordinator says of Advogados Associados.

The equipment cannot:

allow modification or deletion of data recorded by the employee; make time restrictions on appointments, such as predetermined or contractual time; require prior authorization to schedule overtime; allow the prior allocation of the rest period and the schedule by way of derogation from the normal working day.

Mediation

Mediation of collective labor disputes can be carried out free of charge for the parties by the Labor Secretariat of the Ministry of Labor and Welfare, as long as requested by the workers’ union or companies, in order to avoid labor disputes.

The mediation will be conducted by an official working at the Ministry of Labor, including auditors. If there is consensus, the deal will be out of court. “It’s another form of negotiation,” says Karolen Gualda, of Natal & Mans on Advogados Associados.

The objectives of the standard, according to Calvet, are to consolidate procedures and facilitate the achievement of agreements.

Outsourcing and temporary work

The Sub-legal Labor Regulatory Framework sets the strict limits of legislation on outsourcing and temporary work. “There haven’t been any big changes,” says Calvet of TRT-RJ.

“The rule reaffirmed what the law already says, allowing the outsourcing of the main activity and stressing that there is no working relationship between the worker and the contracting company,” explains Karolen.

She said that there will only be a link if there is subordination, heaviness, non-event and personality. “This was clearly expressed in the framework. With these requirements, outsourcing is not characterized, ”explains the lawyer.

According to the decree, temporary work is considered to be that provided by a person hired by a company in the sector who makes it available to a company providing services to meet the need for temporary replacement of permanent staff or the additional demand for services.

The decree also defines that temporary work should not be confused with subcontracting and does not consider as a complementary demand those continuous or permanent and resulting from the opening of agencies.

Transportation vouchers

The decree established that the transport ticket cannot be used in collective private transport and individual public transport services. According to Karolen, this means the aid cannot be used in transportation applications, with a few exceptions.

It also prohibits the replacement of the voucher by a cash advance or other method of payment. The measure excludes domestic workers or when there is “operational unavailability of the operating company and lack or insufficient stock of transport tickets necessary to meet demand and operate the system”. In this case, the worker will be reimbursed from the immediate payroll, if he made the expense by himself.

Services abroad

The aim of amending the legislation on workers hired or transferred to provide services abroad is to reduce costs in this modality. Thus, when the employment contract is liquidated, the company can deduct the sums paid to the Employment Compensation Fund (FGTS).

food stamps

The framework makes the workers’ food program more flexible, which includes food stamps. “This is the most important change that has taken place in infra-legal measures,” says Karolen.

The decree provides that the employee can use the card in any establishment that accepts this means and not only in approved establishments. Credit portability between brands is also planned. The measure takes effect in 18 months.

Companies linked to the PAT must maintain tax incentives, but will have to put in place a nutritional program for their employees.

The federal government will also limit the income tax deduction for the granting of meal and meal vouchers. The rules established by the Regulatory Framework establish that there will only be a discount on the IRPJ basis for values ​​up to a single minimum wage. And the discount can only be applied to earnings up to five minimum wages.

According to the newspaper “Valor”, the measure could be the subject of a judicial questioning. Indeed, the benefit in the PAT was established by law and, in theory, could not be limited by decree.

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