Brazil: End Of The Term Of Effectiveness Of The Provisional Measure 808/17

Provisional Measure 808/2017

Provisional Measure 808/2017 ("MP 808/2017") was issued to clarify/regulate several points of Law no. 13,467 / 2017, which governs the Labor Reform.

Because it was not approved in time, MP 808/2017 lost its validity on April 23, 2018, again giving effect to the rules in force prior to its publication (with the original Labor Reform wording).

What is it?

Provisional Measure is a temporary legal act through which the President of Brazil can enact laws without the approval by the National Congress. There are two requirements for a Provisional Measure to be adopted: urgency and relevance of the matter to be regulated.

Even though it has immediate legal effects, the Provisional Measure needs to be further appraised by the House of Representatives (so-call "Câmara dos Deputados") and the Senate to be converted, definitively, into an ordinary law.

Term of effectiveness?

The initial term of effectiveness is 60 days, automatically extended for the same period, in case the voting is not completed in the two Houses of the National Congress.

Provisional Measure 808/2017

Provisional Measure 808/2017 ("MP 808/2017") was issued to clarify/regulate several points of Law no. 13,467 / 2017, which governs the Labor Reform.

Because it was not approved in time, MP 808/2017 lost its validity on April 23, 2018, again giving effect to the rules in force prior to its publication (with the original Labor Reform wording).

Labor impacts on the expiration of MP 808/2017

Upon the expiration of MP 808/2017, and, consequently, in view of the lack of the necessary regulation/clarifications, the subject matters covered by said Provisional Measure were again regulated solely by Law no. 13,467 / 2017, in its original wording.

As a result, the company that has implemented a change in light of MP 808/2017 cannot at the outset make detrimental changes to its employee's employment agreement (which should be analyzed on a case-by-case basis).

This situation leaves the company in a vulnerable position in relation to the changes already implemented, since, upon the expiration of MP 808/2017, they are no longer protected by law.

Main changes as of the expiration of the Provisional Measure:

SCALE 12×36

With the fall of MP 808/2017, the parties can establish a work shift of 12×36, even by Individual Written Agreement.

As for the entities operating in the health sector, paragraph 2nd, of art. 59-A, of MP 808/2017, provided the 12×36 shift by individual written agreement, collective agreement or collective bargaining agreement. However, currently, due to the end of its term, there is no legal provision that authorizes this type of work shift.

INTERMITTENT EMPLOYMENT AGREEMENT

Due to the fall of MP 808/2017, it was again determined that the intermittent labor contract should contain, specifically, only the value of the hour (said value cannot be lower than a minimum wage or less than the salary paid to the other employees of the establishment carrying out the same activity).

In addition, the following procedures were re-introduced:

  • After the call/offer to work, the employee will have a deadline of 1 (one) business day to respond to the call, presuming, in case of silence, the refusal;
  • Accepted the offer to work, the part that fails, without due cause, will pay to the other part, within thirty days, a fine of 50% (fifty percent) of the remuneration that would be due, allowing compensation in equal deadline;
  • The period of inactivity will not be considered time available to the employer, and the worker can provide services to other contractors;
  • At the end of each service period, the employee will receive the immediate payment of the remuneration; vacation proportional + 1/3; 13th salary (Christmas bonus); weekly paid rest; additional legal provisions;
  • The employer will make the payment of the social security contribution and deposits of the FGTS, according to the law, based on the amounts paid in the monthly period and will provide the employee with proof of compliance with these obligations.

REMUNERATION

With the fall of MP 808/2017, only the amounts, even when customary, paid as allowance, food allowance, not including cash payment, travel allowances, premiums and allowances are not considered as employee's remuneration, do not form part of the employment agreement and do not constitute basis for the incidence of any labor and social security charges.

The tip is intended for workers and will be distributed according to costing and apportionment criteria defined in a collective bargaining agreement. If these methods are not defined in a collective bargaining agreement, the apportionment and distribution systems of the tip and the expected retention percentages will be defined at the general meeting of the workers.

AUTONOMOUS

With the expiration of MP 808/2017, the self-employed employee can work with or without exclusivity and continuously or not, without mischaracterizing the form of hiring.

UNHEALTHY FOR WOMEN

Only pregnant employees exposed to a maximum degree of unhealthiness will be removed immediately. With respect to the other grades, there will only be withdrawal when a medical certificate is presented for this purpose.

EXTRAPATRIMONIAL DAMAGES

The reparation for off-balance damages may be claimed cumulatively with the compensation for material damages resulting from the same harmful act.

With the expiration of MP 808/2017, the court will fix the compensation to be paid, according to the salary of the affected employee, in one of the following parameters, the accumulation is forbidden:

  • For offense of a light nature – up to three times the amount of the salary;
  • For offense of average nature – up to five times the value of the salary;
  • For offense of a serious nature – up to twenty times the value of the salary;
  • For offense of very serious nature – up to fifty times the value of the salary;

In the event of a recurrent offense, the judge may double the amount of the indemnity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Ana Lúcia Pinke Ribeiro de Paiva
Stella Neves Ferreira Piauí
Marília Chrysostomo Chessa
 
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