Against labor regulation

Image: Donatello Trisolino
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By RENAN BERNARDI KALIL*

The self-employed worker is placed in a condition of tormentor of himself within the scope of an asymmetrical relationship in which his autonomy is extremely reduced

In March, Complementary Bill 12/2024 (PLP 12/2024) was sent to the National Congress with the aim of regulating the work of drivers who work through digital platforms. At the time, we point its main problems: the mistaken characterization of digital platforms as intermediaries, the insufficient definition of self-employment and the prohibition of recognition of the employment relationship even when elements of work control are present.

After months of intense debates in various spaces, including public hearings and seminars held by the Chamber of Deputies, a replacement for PLP 12/2024 was recently released. Not only did the old problems remain, but new ones were created.

The main thing is rest. The Constitution provides that this is a worker's right. However, the substitute subverts the logic that justifies recognizing rest for workers and places it as a duty. Yes, for drivers who work through digital platforms, rest will be a must.

Designed as a worker protection mechanism, rest is one of the instruments that limits the number of hours that one person can provide services to another. In this way, the aim is to ensure that the beneficiary of the activities carried out by the worker ensures a minimum period to restore energy between the end of one journey and the beginning of another.

Characterizing rest as a duty throws water into the mill of transferring responsibilities only to workers in a highly unequal relationship. Placing the obligation on drivers to control their own rest in a context in which they do not decide the price of their work and are punished for not accepting a minimum number of rides or for canceling trips only reinforces the discrepancy in power between workers and platforms. .

The art. 4th of the substitute says that within a period of 24 hours, the driver has the obligation to rest for at least 11 hours, and must be disconnected from all platforms. The possibility of dividing this 11-hour interval is offered, as long as a minimum of 6 uninterrupted hours of rest is guaranteed.

In relation to rest periods, we realized that, faced with the need to find references, help is sought in labor law. It is no surprise that art. 4th brings the limits already provided for in articles 66 and 235-C of the CLT. However, a limited responsibility is attributed to digital platforms in observing these parameters.

The art. 5th establishes the punishments for non-compliance with the duty to rest. The driver may be suspended from all platforms on which he/she is registered and be prevented from joining new platforms for 30 days. In case of repetition of this non-compliance, the punishment is doubled. These penalties will be imposed after a notice of infraction is drawn up by a supervisory body of the Executive Branch.

Here, one of the perverse sides of characterizing rest as a duty is manifested: non-compliance, on the part of the driver, prevents him from working and subjects him to receiving a fine. In other words, the worker is placed in a condition of tormentor of himself within the scope of an asymmetrical relationship in which his autonomy is extremely reduced.

At the same time that we debate PLP 12/2024, the rest of the world is also discussing the regulation of work via digital platforms. In April, the European Parliament approved a directive on the subject. The text provides rules to combat the fraudulent classification of workers as self-employed: a legal presumption was established that the relationship between a platform and a worker is an employment relationship when elements of control and direction of the activity are identified. If the platform wants to refute this presumption, it is up to it to demonstrate that the relationship is of a different nature.

In other words, while we debate how to absolutely prohibit the possibility of recognizing an employment relationship and transform rights into duties, Europe is discussing how to offer social protection to workers based on the analysis of what happens in the world of facts. If Brazil wants to get out of the way of labor regulation via digital platforms, an urgent change of course is necessary.

Renan Bernardi Kalil He is a labor attorney, has a doctorate in law from USP and is a professor at Insper..

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