By EDUARDO REZENDE PEREIRA*
The bill that regulates the work of drivers using applications in the country constitutes a regulation within the framework of precariousness
On Monday, March 04, the federal government held an event to launch the bill (PL) that regulates the work of drivers using apps in the country. The event was attended by authorities and politicians, union leaders, workers and business representatives, it is a milestone, within the scope of the Executive branch, after the intense negotiations that involved the regulation of work subordinate to digital platforms in the last year.
The PL in question is aimed especially at app drivers, leaving delivery drivers and other categories out. Called “Autonomy with rights”, the proposition aims to guarantee, according to the government's discourse, the autonomy of workers in carrying out their working hours together with the granting of some social rights, especially related to contributions to social security.
A story that drags on
Different countries have regulated work via digital platforms, especially passenger transport and delivery through apps. Brazil, which is one of the largest niches for these large companies, had not yet given any answer to this question – the only regulations, at the federal level, being those that enabled these companies to operate, in mid-2014, without any compensation to workers. that guarantee your profits.
Lula da Silva (PT) has shown interest in regulating work through apps since the election campaign period. The current president's most emblematic statement in this direction was in April 2022, in a meeting with trade unionists and workers.
In May 2023, after going back and forth with representatives of workers and companies, the government set up a Working Group (GT), coordinated by the Secretary of Popular and Solidarity Economy, Gilberto Carvalho (PT), to address the issue. The GT, which ran until September 2023, only discussed ways of regulating the work of delivery people and drivers using apps. Furthermore, it ended its activities without any concrete results, although it publicly said that the discussions would form the basis for a consensual proposition.
In his speech at the PL launch event, the Minister of Labor and Employment, Luiz Marinho (PT), commented: “We closed the negotiation in November. And from November until now we did the writing. Complex writing, and we understand that. I had never participated in a negotiation where the writing took so long.”
Given the government's stance, the other parties mobilized to win over public opinion and put pressure on institutions: on the one hand, companies invested in lobbying and advertising, publishing biased research that elucidated a possible opposing opinion among workers regarding the forms of regulation; on the other, workers carried out several demonstrations, with virtual campaigns, strikes and protests.
Fractional regulation
The regulation envisaged only for app drivers is justified, according to the government, due to the acceptance of its content by both company representatives and workers – and it is symbolic, both at the event and on social media, the enthusiastic and the celebration coming from both sides.
The choice of two PLs creates a fractional regulation of work on digital platforms. It is likely that the standards regarding delivery drivers will be different and, in this sense, involve even lower working conditions and access to rights, since these workers live with even greater aspects of precariousness.
What does the government mean by autonomy with rights?
After signing the PL, Lula spoke for around 15 minutes. In his words: “History will prove that this is a day very different from others (…). A while ago, no one in this country believed that it would be possible to establish a negotiation table between workers and businesspeople and that the result would be a different organization in the world of work (…)”.
The government argues that the PL seeks to provide greater security and transparency – based on the terms and conditions of use, which are established by the platforms –, in addition to the contribution of workers and companies to the National Social Security Institute (INSS) – impacting aid -maternity and retirement, for example –, and minimum remuneration and maximum working hours, calculated by the time “effectively worked” – that is, which takes into account the time in which workers run, and not the time in which they remain at work. arrangement of platforms, waiting for the call.
A glass half full or half empty
On another occasion, we argue that the regulation of work via digital platforms in the country could take three paths. The first, with a progressive bias, aligned with the best international regulatory experiences and consistent with what scientific research has pointed out, would be the understanding that these workers are subordinate to the companies and that, therefore, they should have formalized the employment relationship and guaranteed access to social and labor protection provided for in the Consolidation of Labor Laws (CLT).
The second, with a conservative bias, aligned with the companies' interest in profit, would be to maintain the current understanding that these workers are not subordinates and that, therefore, they have total work autonomy, without having guaranteed due recognition of the employment relationship and access to rights. The third, with an equally conservative bias, would be reduced regulation: without the proper understanding that workers are subordinate to companies, and, therefore, without providing for the formalization of work and access to the rights provided for in the CLT, but with the guarantee of certain benefits. Lula's proposal follows the third path.
No wonder, companies celebrate the victory. The speech by André Porto, from the Brazilian Mobility and Technology Association (Amobitec), representative of the main app-based transport companies, such as Uber, is enlightening: “We have always been in favor of creating a regulation that would offer a balance between the demands of workers and the sustainability of an innovative business model, which brings benefits to the entire country's economy. We have defended, since the beginning of the work [of the GT], the inclusion of workers in the public Social Security system, the definition of a minimum income and other issues covered in this PL, such as greater transparency in the relationship between platforms and drivers”.
And he continues: “(…) The proposal for a regulation that guarantees legal security for companies to continue investing, and at the same time guarantees the rights of app workers, will certainly be a historic milestone in this industry in Brazil and an example for others countries”.
In time: companies have always been in favor of which regulation? What rights do workers have? Are the security and transparency that they seek and have achieved the same ones that workers demand?
“Autonomy with rights” tries to make a synthesis between opposing camps – while having autonomy would mean a lack of rights for workers, having access to rights would mean total subordination. The PL, however, does not create autonomy or guarantee full access to rights.
The government celebrated and was applauded for “creating a new type of work”, “a new category of workers”. In Lula’s words: “A new child was born. In the world of work, people who want autonomy will have autonomy, but they will have a minimum of guarantees.” In the same direction, the Minister of Labor and Employment states: “What is born here is a different category. The problem is that this freedom until then was a false freedom, because workers were being enslaved by long hours and low wages (…). It's autonomy, yes. Workers will be linked to as many platforms as they wish, they will be able to organize their schedules, but they will have guaranteed rights, the right to social security coverage.”
The government, in reality, created second-order rights. Something that could be seen as a glass half full, in that long-known allegory, but which represents a glass half empty. It's strange that the progressive camp insists on drinking from this half-full glass. When defending the PL, pointing out that the government “did what was possible”, many have demonstrated compliance with the “least worst” result. This should haunt us when we think, in the medium and long term, which country project and which form of social and labor protection we are willing and able to build for current and future generations.
The work of drivers using apps continues to be subordinated to digital platforms, that is, controlled by algorithms that define the price, time and the possibility of work itself, with workers' only autonomy being the moment of choice — which is not purely and simply a choice, as we know — to be Logged or not in the app.
The discourse of workers' autonomy masks the link of subordination with the platforms, and, consequently, makes it impossible for institutions and the subjects themselves to understand legally and politically the possibility of full access to social and labor rights. Companies, since mid-2014, have been promoting the “freedom” and “flexibility” of working hours to deny their relationship with workers. This thesis not only stopped being refuted by the Workers' Party government but also began to be incorporated and encouraged.
A risk to CLT
Even with the setbacks and legislative changes that were made by the 2017 labor reform – the repeal of which seems to be increasingly beyond the horizon of the Lula government –, as they are recognized as workers subordinate to companies, drivers and app delivery people – and even other workers via digital platforms – could be included in existing professional categories, and have the rights already provided for in the CLT.
In the words of Luiz Marinho: “The CLT is very well, alive and present, in the lives of millions of Brazilians and the Brazilian business community. It turns out that President Lula made a commitment in the election campaign to work on regulating workers through apps and the economic activity of apps. This commitment, from the beginning, was not stated whether it would be through the CLT or not. It is a process of debate in a new moment in the job market and new choices (…). It is necessary to observe what is happening internationally in the economy and labor relations, and note that a dialogue with workers and businesspeople would be necessary. More than participating in the negotiation, the government organized a tripartite group and provoked a dialogue between the parties”.
Lula has said that his proposal for regulating work through applications is inspired by the one recently approved in Spain, which understands that workers must be formalized and have access to the set of social and labor rights provided for in the legislation.
However, in practice, Lula's proposal goes in another direction: it presents convergence, that is, with laws that favor contracts via outsourcing and pejotization. Such laws distort the relationship of labor subordination, demote or remove workers' access to social and labor rights and legitimize, through regulations, precarious working conditions under the veil of autonomy and concern for the “legal security” of companies. .
Several researchers, activists and leaders of collective organizations have warned that the PL represents a risk to formal employment and access to CLT. They claim that the creation of this form of reduced contracting could encourage the same format for other cases – as has already occurred after the approval of outsourcing legislation and the creation of the Individual Microentrepreneur (MEI).
Next Steps
After launch, the PL was forwarded to the National Congress, where it will go through negotiation, evaluation and voting procedures. It is important to highlight that more than a public response to civil society, the launch event serves as pressure from the Executive Branch to the Legislature, which remains averse to the possibilities of regulation. In any case, if approved with or without modifications in Congress, the PL will be considered a victory for the Lula government close to the May 1st celebrations.
Lula's proposal is downgraded. Evidently, the formulation of the PL is inserted in a context of a weak support base in the National Congress, a low capacity for social mobilization and strong pressure from the broad political front that supports it, with sectors of the internal bourgeoisie making it difficult for a shift towards left. But, first and foremost, it is also the result of a political choice.
The content of the proposal to regulate the work of app-based delivery drivers remains a mystery given the lack of consensus between the parties involved and the government's unwillingness to take sides. According to the Minister of Labor and Employment, “there are still delivery workers left. We're not there yet. I hope that this PL [of the drivers] even influences us so that we can return to the table. There's no point in Ifood sending a message. We talked for a whole year.”
According to Luiz Marinho, representatives of app delivery companies claim that the negotiation standard established by workers and the government does not fit into their business model: “The business model is highly exploitative. These platforms also need to sit down to talk, knowing that we need to establish remuneration standards that offer conditions of citizenship and a dignified life for these workers, as we are doing here [with app drivers]”.
Lula made it clear that the approval of his proposal has not been won in Congress: “You know that you will have to work with the deputies. We need to start looking for bench leaders. On the government's part, we will do our best to approve it as quickly as possible, but there are always people against it. It is important to be patient and not angry with those who oppose us. Convincing that they are workers, that they carry the country on their shoulders.”
The Executive's proposal and the behavior of the Legislature will directly influence the next discussions in the Judiciary, which also faces the debate on platform work. The understanding of the existence of an employment relationship between workers and Uber is under discussion in the Federal Supreme Court (STF). Last Friday, March 1st, in a unanimous deliberation, it was recognized that the matter has general repercussion, that is, that it goes beyond the interests of the parties involved in a single process, serving as a judgment model for similar processes.
As reported on the STF website, there are currently more than 10 thousand cases on the subject being processed in the various instances of labor justice. Uber, which is a global reference in the sector, and which has already recognized the bond of subordination with its workers in other countries, has already appealed and asked for the suspension of the proceedings against it in the lower courts of Brazilian labor justice.
It is worth, once again, asking the question again: which regulations have companies always been in favor of? What rights do workers have?
*Eduardo Rezende Pereira is a PhD student in Political Science at Unicamp.
Originally published on the portal Brazil of Fact.
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