Since the beginning of effectiveness of Law 13.467/17 – also known as Labor Reform – hiring of employees in the intermittent modality has been performed by certain companies, however, in most cases, there is still a lot of fear regarding the decisions of the Labor Courts due to this new agreement modality.
The intermittent employment agreement is that one where subordinated service provision is not continuous, that means, there is an alternance between the activity period and the inactivity period, established in hours, days or months, no matter the activity performed by the employee or corporate objectives.
The formalities required in the intermittent employment agreement, basically, follow the same rules as the common employment agreement, such as: the existence of a written instrument, specifying the rules for contracting and service providing; writing of information in the Employment and Social Security Book (“CTPS”); the value of the remunerated hour cannot be lower than the value of the minimum wage hour or value of the hour paid to the company’s employees exercising the same roles as the intermittent worker will exercise; among others.
Under this agreement modality, it is not possible to demand exclusiveness from the employee, as remuneration occurs according to the service frequency, and idle time is not considered as a time at the employer’s disposal, and during this period the employee will be free to provide service to other companies.
Another difference in comparison to the common agreement is the need for call to work, which will be done using any effective communication means – such as, for example, e-mail, WhatsApp or telephone contact – 3 days in advance for work start, and the employee’s express acceptance is mandatory, as silence is understood as a refusal.
As a consideration, at the end of each service provision period, the employee will have the right to remuneration for the days/hours worked; vacation time accrued but not yet due plus 1/3; 13th salary accrued but not yet due, paid weekly rest and additions previewed in law.
However, although effective since enactment of the Labor Reform, this employment relationship had not been used by the companies due to some decisions contrary to hiring viability, specially the decision rendered by the Regional Labor Court of the 3rd Region that had established conditions to the intermittent employment agreement that were different from those previewed in the law, especially in article 443, 3 of the Brazilian Labor Code (“CLT”).
Nonetheless, in a recent decision, the Superior Labor Court (TST), in process 10454.06.2018.5.03.0097, established that “the introduction of rules for the intermittent work in our legal system was caused by the need for giving basic rights to a great number of informal workers (almost 50% of the country’s workforce), living on “odd jobs”, with no employment agreement or guarantee of fundamental labor rights. It is one of the new agreement modalities existing in the world, making hiring and remuneration more flexible, in order to fight unemployment. It does not generate precariousness, but rather legal certainty to workers and employers, with clear rules, that stimulate the creation of new job positions.”
So, at first, TST decision brought legal certainty to the companies regarding the utilization of intermittent employees.
However, for the risks to be mitigated, it is necessary that the option for using this hiring modality is assessed within a context, with the respective specialized legal aid, both for risk prevention such as in the conduction of particular cases, so that compliance with the legislation in force is assured, thus assuring effective application of labor rules and smaller financial impacts.
