12/2/2021
On November 10th, the president of Brazil, Jair Bolsonaro, approved the Decree no. 10,854, consolidating and updating a vast number of infralegal regulations and creating Permanent Program for Consolidation, Simplification and Debureaucratization of Infralegal Labor Standards.
In a few words, we can highlight the Decree reviewed and consolidated around one thousand of labor infralegal regulations, such as normative instructions, ordinances, and decrees, also revoking some dozens of other decrees.
The Permanent Program for Consolidation, Simplification and Debureaucratization of Infralegal Labor Standards, as its own name says, was created in order to simplify the infralegal regulations, splitting them in seven specific themes (without prejudice to others that may be added by the Federal Government: labor legislation, procedures of penalties and appeals of labor administrative proceedings, labor relations and public labor policies, work inspection, conventions and recommendations of International Labor Organization (ILO), regulated professions, safety and health at work and administrative rules.
It was also established periodic reviews on those subjects, to ensure the Program will not become obsolete and outdated, mainly considering that its aim is ensure a simpler and objective mechanism of Labor Law in practice.
In this way, it is not possible deny that, at least at the first moment, the intention of the Decree is good and bring to the companies some hope, since the expressive number of scattered infralegal labor regulations – without mentioning all the precedents of each Regional Labor Court and the Superior Labor Court -, orientating and impacting decisions-making in the companies, become the corporate routine harder, complex and arouses uncountable doubts, due to the existence of regulations controversial between themselves.
For this reason, the creation of a unique rule that assemble, debureaucratize and harmonize the infinity of labor regulations to the economic context globalized and technological that we live, it is effectively a positive advance expected for all of us.
However, some gaps created by the Decree may made us think about its really effectiveness.
For instance, the Article no. 16 of the Decree establishes that inspection of the compliance with safety and health at work is an exclusive authority of Ministry of Labor’s auditors. Nevertheless, a Decree cannot limit the practice of Public Prosecution, which possess, among other guarantees, fully functional autonomy, provided for in the Federal Constitution. Besides that, inspections of Public Prosecution can be eliminated, as the Article no. 17 statues that auditors of Ministry of Labor will be considered the higher authorities in this matter? The answer for this question seems negative.
It is also important to mention the number of criticisms that has been received about the non-jurisdiction of Executive Branch to issue legislation that are related to the subject and purpose of which the Decree was created.
Accordingly, although the wide dissemination about the new infralegal labor regulations, it is clear that it still cannot be used as a rule totally effective and absolute, notably when we analyze plenty of regulations published by the Executive Branch in the last months that were quite controversial and, sometimes, immediately declared unconstitutional by the Federal Supreme Court, for the reason why the decision-making stem from a specific legal advice ends up being even more necessary in this period of legal uncertainty, in order to mitigate future risks and losses.
