Mid-term regulation of labor rights

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By GUSTAVO SEFERIAN, JORGE LUIZ SOUTO MAIOR & VALDETE SOUTO SEVERO*

When it comes to fundamental rights, there is no room for creating intermediate categories

It is not new that the idea of ​​a “minotaur” regulation appears as an innovative and spectacular solution in the minds of many intellectuals linked to the world of work. In the 1990s this debate was intense, giving rise to the creation, from an occasional and confused legislative experience in Italy, of the legal figure of the parasubordinate, which would be, so to speak, a half-autonomous worker, half-employee.

It was said that since many people were unable to find a job, given the high costs of having full labor rights and since, also, many worked, but without any labor rights, the solution would be to create a legal figure halfway between the employee and the self-employed, to make it possible for those who were unemployed to be engaged in this less costly type of work and also to conceive some rights to those who were in “informality”.

It was also argued that the world of work had changed and that the figure of that employee acting on the mats of the factory production lines, for which labor rights would have been molded, no longer existed and, consequently, an increasing number of workers was in the classic “grey zone”, which separated, in an all-or-nothing game, the employee from the non-employee. Then, the figure of parasubordination would come to encompass all these people without a precise legal qualification and grant them, at least, some labor rights.

The problem is that the speech did not correspond to reality and the results produced were quite disastrous, in fact, as it was possible to predict.

It should be highlighted, first, the fallacy of eliminating the gray zone with the creation of the parasubordinate. As we already said at the time, the creation of a legal figure in the middle of the road would only serve to create yet another gray area. So, instead of a separation between employee and self-employed, there would be two lines of separation, that of the self-employed, with the parasubordinate; and that of the parasubordinate, with the employee. And if before the separation, although tenuous at some point, was more evident, the new divisions, given the promiscuous approximation of the parasubordinate with the self-employed and with the employee, would be even more difficult to define.

This even more blurred shadow would even be the open door to transport employees, that is, those workers who hold the legal status of employees, to parasubordination.

What was projected as an increase in labor legal protection would result in an increase in precariousness, given the “normal” lowering of the material safeguards of these workers . And that was actually what happened in practice. In addition, the random and authoritarian disposability of some labor rights only serves to weaken the totality of rights, which even pass to the level of purely economic evaluation, especially when one adopts the assumption that the fundamental rights of workers are the most important. blamed for unemployment.

In Brazil, the experience verified with “work cooperatives”, from the 1990s onwards, leaves no room for quibbles on this subject. Outsourcing itself, which is still a middle ground regulation, although the legal status of employment is preserved, given the reality of the enormous precariousness in the sector, also does not allow optimistic projections to be made about the neither there nor here.

When it comes to fundamental rights, there is no room for the creation of intermediate categories, otherwise it would be the same as saying that the pact around the minimum human condition is valid only for some people, with social reality, therefore, others whose almost human or subhuman treatment would be authorized.

It is important to have this very clearly evidenced. Labor rights are fundamental rights, since their objectives are: to protect the health and dignity of male and female workers; limit exploitation; improve the social and economic condition of male and female workers; enable the insertion and political and democratic organization of the working class in capitalist society.

The challenge that has always been imposed on the capitalist model, therefore, has been to implement these rights, which were even conceived based on many claims and struggles of the working class. Any elimination, retraction or even waiver of these rights represents, therefore, a defeat and a historic setback. The reduction of these rights is not new, it is old, whose overcoming is still being tried to consolidate.

When the current Minister of Labor, who proposes a debate on what he euphemistically calls “work through applications”, says that not every worker needs CLT, what he does, concretely, is naturalize the setback and, even more tragically for the necessary understanding of our history, to endorse the irrational aversion, watered with hatred, that one has in Brazil in relation to the CLT.

However, the CLT is just a legal document that explains the minimum rights of those who, in order to survive, sell their workforce to another person or company in a salaried relationship. The rights of those who work, moreover, are also set out in various other legal instruments and, above all, in the Constitution (not to mention the Declarations, Treaties and international Conventions). Incidentally, considering what is contained in the Constitution and in these international documents, the rights integrated into the CLT are far below the level that would be the minimum.

As said, our challenge is different. The urgent task is to extirpate from the legal world all the formulas that, since the 1960s, were created to lower labor legal protection. And, above all, to break, at once, all prejudice or even hatred towards labor rights, which are, in fact, fundamental rights and which do nothing more than try to protect the health of male and female workers and promote a progressive improvement of their social and economic condition, through: limitation of working hours; minimum wage and legal mechanisms for salary increases (collective bargaining and strikes); rest periods (holidays, paid weekly rest, breaks during and between working hours); protection against unemployment, harassment of all kinds, guarantee of minimum conditions of health, safety and hygiene at work, etc.

When it is said that a male or female worker who sells his or her workforce to survive, in the context of satisfying the interests of the person who takes advantage of the result of the work provided, does not have CLT, what is being said, concretely, is that one can deny fundamental rights to this person. In short, that the Constitution does not apply to her. As you can see, it is a very violent speech, aimed at those who have been historically excluded, which naturalizes unlimited exploitation. And it still does so with the fallacious discourse of freedom and autonomy.

This proposition generates only two concrete effects: the lowering of the human condition of this worker and the potential increase in the rate of profit of those who exploit the labor force of others. Precariousness does not improve the country's economy. On the contrary, it generates retraction, as it promotes, in general, greater accumulation of wealth and, consequently, more social inequality. Furthermore, it causes a greater social cost, due to illness and deaths at work, without increasing the number of jobs, not least because any jobs generated are not, in fact, jobs, but underemployment.

Furthermore, the existence, in the world of work, of male and female workers who have a lowered legal position of social protection causes this lowered level to be seen as the level of comparison, generating the perception that the male and female workers to whom they are directed all labor rights are considered privileged.

Thus, what was to be seen as the minimum level of civilization, as it was obligatory to recognize over years of learning and struggles, becomes the maximum. The male and female worker who “has CLT”, therefore, would be a privileged being, even more so if we consider the thousands (or millions!) of people who cannot even sell their workforce, the unemployed.

This total inversion of values ​​allows the Marines to understand that giving a basket with some rights to those who did not work before or worked without any rights is an act of progression or even, as stated in the recitals of the labor “reform”, an implementation of “ social justice".

In fact, what is being promoted, as stated, is the downgrading of what is understood to be the minimum legal protection in labor relations, which even serves to protect the market from its self-devouring tendency. The concrete historical challenge has always been to make labor rights effective, given recurrent escape attempts promoted by the business community in this regard, favored, in peripheral countries, by the unequal international division of production and capital. That is why, in terms of the search for effectiveness, the essentiality of attributing to labor rights, as fundamental rights, the quality of inalienable rights was understood.

It should be noted, by the way, that most of the millions of male and female workers who sell their workforce in the so-called "informality", that is, without recognition of the legal status of male and female employees, are, in fact, victims of an economic coercion, which obliges them to accept work under the conditions offered and which sees no possibility of reaction when it verifies that the State itself presents itself as a stimulator or legitimizer of this situation and that trade union organizations are also under target and concerned with the very existence and with the fight against the reduction of the rights of its associates (those “privileged” who have “CLT”).

Incidentally, one of the mechanisms for consolidating the retraction of labor rights is to break up the working class, both by dividing it into “privileged”, outsourced and informal workers, and attributing to them the appearance of an “entrepreneur”; what is verified even in the two poles of the economic pyramid of labor relations. That is, whether with the “senior employees”, who go through the process of “pejotization”, or with the most precarious, who are convinced that they are entrepreneurs of themselves, or Individual Micro Entrepreneurs (MEI), although, in reality, , its work is being carried out, in a network, for the development of large capitalist businesses.

Thus, when it is said that the so-called "work provided through applications" is a modern form of employment relationship, different from the one to which the CLT turned, and that workers who provide services to companies that explore economic activity through of digital platforms do not want labor rights, several mistakes are made, namely: (i) the historical data of the construction of labor rights is disregarded, which is related, that is, to the limitation of the economic exploitation of the human being, in its most varied forms; (ii) the recognition of the minimum condition guaranteed to male and female workers is broken; (iii) an obstacle is created for the realization of human rights in labor relations.

(iv) The interest of application companies is replicated in a more restricted way, which will thus be able to explore work at a level below the existential minimum without risk reduction, given the approval granted by the State for this purpose; (v) a “new” division in the working class is encouraged and institutionalized, creating yet another obstacle to the formation of class consciousness, which is essential for social struggles; (vi) the legal and political position of all male and female workers is weakened; (vii) the false argument is incorporated that the apparent form of exploitation of labor is what determines the content of rights, when what actually matters is whether or not there is an exploitation of the workforce for satisfaction of someone else’s interest (and employment relationship is just the legal name given to this situation – not a “swear word” or “moral offense”), governed by the same logic of wage earning and profit-making that dominantly characterizes work under capitalism .

(vii) Authentic social damage is promoted, since society as a whole will have to bear the social and economic consequences, as well as the human traumas resulting from accidents and diseases caused by the unlimited exploitation of other people's work, while those who benefit economically from the situation are not even induced to compensate the community through taxes and social contributions; (ix) the concept of dependency or subordination is subverted, which is precisely related to the work performed, without which the economic activity explored by companies that offer services through applications would not even exist; (x) the fallacious discourse of freedom is encouraged, which concretely translates into the need to “activate” for more hours than the constitutional parameter allows, in an ergonomic situation that is aggressive to the body, in an environment of constant stress such as the traffic environment of vehicles.

(xi) The disguise is promoted that allows the transfer of the entire cost of the business to the employee, while the company remains the only one to appropriate the surplus value generated by the work; (xii) and all this is done through the use of the classic rhetoric of the business sector in the neoliberal context that the reduction of social rights is an aspiration of the workers themselves, who would come to understand that the blame for their ills it is the cost that social rights generate for companies.

It is important, above all, to understand that the precariousness of working conditions is not of interest to companies that hold a technological monopoly solely because of its more immediate effects of cost reduction and the shaking of class consciousness, insofar as male and female workers are induced to fight each other for the few and increasingly poorly paid jobs. They are interested, within their ideological conception, above all, in disseminating the practice of forms of labor exploitation that weaken the working class as a whole and that promote the dismantling of the economic, social and human project proposed by the Social State.

“Uberization” is an assumed process of lowering the living conditions of male and female workers, seeking to reduce or even eliminate the potential for organization and struggle, in addition to constituting, consequently, a direct affront to the Welfare State and not just yet another strategy to increase the rate of profit, which, in this context, can even be taken into the background, given the greater objectives of domination and appropriation of political and economic power (https://www.lepoint.fr/economie/ uber-dara-khosrowshahil-homme-qui-va-nous-faire-changer-de-vie-29-11-2018-2275266_28.php). Also because, people who work all the time and who are solely responsible for their own survival, from an individualistic, self-defeating and precarious logic, will have much more difficulties to live together, recognize the common problems and build another less destructive sociability. This process, therefore, strongly compromises political capacity, which is deeply problematic, especially when we are dealing with the possibility of having no future, due to the ecocide promoted and encouraged by the system.

At the present time, more than 20 years later, the theme is revamped or integrated by other arguments, to give it an air of something new.

Since 2013, studies of Marxist criticism in the field of law have deepened, highlighting the perception that law is, formally, a capitalist element to legitimize exploitation. Law, even labor law, would therefore have a negative ideological role, especially when it induces the working class to demand more rights.

Labor Law, in turn, would be the maximum expression of oppression, since, in order to gain rights, the working class gives up freedom and forms of struggle that could effectively lead to the consecration of its most radical interests. From this perspective, the employment relationship, for example, when configured through the element of subordination, would also support the legitimacy of the directive and disciplinary powers of the employer over the employee, constituting an obstacle to autonomy.

On the other hand, there are criticisms that, with due accuracy, denounce the historical limits of Labor Law. They expose traits that denote their condition as part of a sexist, racist and ecocidal social order, based on rules that legitimize or even endorse such practices, as is the case of the possibility of just cause.

For this reason, when the theme of “work through applications” is put into perspective, the Modern Emancipatory legal conception often ends up defending that the employment relationship for these workers is a reactionary attitude and aligned with the interests of capital. These people want and deserve freedom and the employment relationship enslaves and oppresses them. Decree!

With these arguments, part of the left (progressive or “revolutionary”) legal intelligentsia goes in the same direction of a regulation that confers some labor rights, but not those classic rights of the employment relationship.

Our position is absolutely contrary to any reasoning that leads, even with the best of intentions, to the precariousness of the conditions of those who live from work. If capital defends the partial regulation of the activity, the trap is understandable. We have no right to be naive. This is not about turning a blind eye to the limits and contradictions inherent to Labor Law, contained in the CLT and in the Constitution of the Republic. But to recognize that what is structural to it is so due to its umbilical connection with the capitalist mode of production.

As long as capitalism exists, Labor Law must, in one way or another, in a more protective way or another, exist. So, being a “weapon of the enemy”, to use Pachukanis's expression, does not remove from Labor Law the status of an important instrument of social justice, an essential barricade to prevent barbarism, a transgressive source of material condition for an existence with dignity.

This is why we understand that an increasingly radical and protective Labor Law is necessary. And isn't a more protective condition for those who work always beneficial? Seeking a full application of the safeguards historically conquered so far would not be an even more relevant step in improving and tightening the very limits on which Labor Law is based?

If the exploitation of labor is carried out through digital tools, may this not prevent us from seeing the reality of the exchange between capital and labor and from understanding that it is the social structure that generates the obligation to work as a condition for survival. Any attempt at differentiated and partial regulation for these workers is nothing more than more of the same, or even, more properly, less of the same. Regretfully, after so many years of studies and discoveries, it appears that in many approaches it ends with the invention of the wheel.

Now, if it is true that the law functions as an element of preservation of the structures that allow the constitution and reproduction of capital through the exploitation of labor, the opposite is not necessarily true, that is, that eliminating rights goes against the interests of the capital. Unquestionably, what favors capital is the fact that in capitalist society social relations move like legal relations and a work relationship, with more or less rights, is, even so, a legal relationship.

Employment relationship is just the name given to a specific legal relationship. So, if the employment relationship is not identified as an employment relationship, it will still be a legal relationship shaped to satisfy the interests of capital.

Incidentally, it will be so in an even more perverse way, because history is a dialectical construction and the history of capitalism is also history. Capitalism moves in appearances, but this social, political and economic relationship, even if it hides its essence, is not an abstraction. The employment relationship is a legal relationship dialectically established and full of historical contradictions. Seen from this perspective, the employment relationship is a complex stage of the capital-labor relationship, in which several guarantees are inserted to workers that, even without overcoming the basic legal relationship of labor exploitation, provide better living conditions to those who , out of necessity, is forced to sell his labor power to survive.

It is not the employment relationship that oppresses, therefore. The employment relationship is an obstacle to unlimited oppression and the greater its range of rights, the greater the limit imposed on capital and the greater the recognition of the human condition of male and female workers. It's not perfect, as nothing in life is perfect, and it claims to be improved. But not abandoned...

Outside an environment of effective proletarian revolution, giving up the employment relationship and its legal apparatus (limitation of working hours, protection against arbitrary dismissal, minimum wage, right to strike, unionization, access to justice, etc.) give way to the greed of capital. It does not represent liberation, but greater oppression and with greater disguises.

Paulo Lima, Galo, in a meeting held with the Ministry of Labor on the 19th of January last, brought a fabulous comparison with the issue of public health: we can even be dismayed by the queues at the SUS, the delay in service, but the solution for that is to abandon it? Wouldn't it be the most appropriate way out to improve, improve, what one day we already conquered?

And “application workers”, who are, effectively, workers whose workforce is engaged in the development of the business of companies that own applications, are, under the terms already established by law (arts. 2o and 3o of the CLT), legally defined as employees, since their services are provided in a non-continuous, onerous and subordinated manner, subordination being understood, in due form, as the alienation of the workforce to those who own the means of production and if appropriates the benefits of the work done.

The employment relationship, in short, is the legal identification of the capital-work relationship and that explains the formal and real state of subsumption of work to capital. That simple.

In these terms, for the recognition of labor rights to “workers by applications”, it is enough to apply the existing legislation, which has already been shaped to the appellants and not at all innovative attempts by capital to escape the shackles of social rights.

See, in this sense, the Menu below:

"Menu: Uber do Brasil. Driver. Recognized employment relationship. Technological advances do not legitimize precarious work. Fundamental rights do not bow before economic power. There is no privilege in servitude.

From an abstract point of view, the first major obstacle that has been verified for understanding the work provided through applications lies in the lack of understanding of what is, legally, an employment relationship. Many judges, who deny the existence of an employment relationship in the situation in question, cling to the argument that the worker is not subordinated, relying, therefore, on two facts: that the worker is free to choose his working hours of work and who is not punished if he does not work.

The worker, therefore, would not be under the command of the employer and his activity would be self-managed, thus also concluding that what we have, in concrete terms, is work provided 'by' the application and not 'for' the application, an argument that even appears as the central point of the appeal filed by the defendant in the present case file. In this regard, one cannot fail to point out the merely rhetorical aspect of the argument, as the application is not a subject of law and, therefore, could not even be considered for the purpose of legal analysis. The application does not have a life of its own, does not express wills, desires and, therefore, does not set goals or commands. It is nothing more than a thing, an object or, more specifically, a tool.

Arguing, to deny the employment relationship, that the work is provided 'by' the application and not 'for' the application does not have any concrete meaning, from a legal point of view, as it is equivalent to asserting, in relation to a mason, for example , that he carries out his work 'by' using a 'trowel' and not 'for' the tool in question. Now, it is clear that the driver does not work 'for' the application, just as the mason does not work 'for' his spoon and this truism, extracted from logic, has no legal repercussions.

The subjects involved in this relationship are the entity that acts as entrepreneur, the driver and the passenger. The company Uber, unequivocally, is integrated into this relationship as an entrepreneurial entity, since its activity, as it presents itself on its website, is to provide the tool that can connect the driver to the customer: 'Our main service is to develop technologies that connect partner drivers and users at any time. But it is evident that it does much more than this, as it not only produces the 'trowel', but also maintains it under its ownership, defines the modes of its use, establishes the parameters of the relationship between the driver and the user, manages the carrying out the activity and retains a portion of the economic benefit arising from the service provided.

It is clear, therefore, that the company Uber is the active subject of this relationship and not merely the owner of the tool. The driver is another evident subject of this relationship and his participation takes place with the exercise of the work necessary for the service to be provided. The driver is a worker, therefore. The other subject is the user, who takes advantage of the services provided, both by the driver and by Uber. To reach the driver, the user makes use of the application and, afterwards, benefits from the transport itself, through the driver's driving, and, for that, pays the previously established price; a price that includes, without concrete delimitation, both services. The user, therefore, integrates the relationship, closing the cycle.

It is not, therefore, a horizontal linear relationship, as suggested by the defendant on its website, in which Uber provides the tool and the person who acquires the tool uses it to sell the service to a third party. The user, specifically, establishes an initial legal relationship with Uber, as a consumer of the service actually offered by it and not merely 'enabled'. Although, in court proceedings, it tries to build another version of reality, in the extra-autos world, Uber explains the transport service it sells to the consumer and calls out, 'Go by Uber'. The user, who answers the call and goes by Uber, therefore signs a consumption relationship with Uber and not with the driver, who appears in the relationship as a mere performer of the work necessary to carry out the service. So much so that if the user is affected by any damage during transport, the repair will certainly be sought from Uber and this formulation has been repeatedly accepted by the State Courts.

When the cycle of formalized legal relations is closed, the result is:

– who works is the driver and his participation is, only, the delivery of the work. A job that is carried out for Uber, which depends on it for the implementation of its economic enterprise, with little importance in assessing whether the enterprise is profitable or not, since it assumes the risks of the activity;
– the work provided is not autonomous work, as the driver does not define, by himself, the conditions under which he will be provided to the consumer, not having autonomy even in relation to the price charged for the work. The fact that the worker bears the costs of carrying out the transport, even being the owner of the vehicle (when not renting it), only serves to increase his level of economic dependence on the one who pays him for the work performed and who, concretely, it benefits economically from the situation, which is Uber itself. Transferring part of the enterprise costs to the worker only increases the level of labor exploitation.

There is no denying, therefore, that we are facing a clear legal relationship in which the driver sells his workforce to implement the Uber project and which translates, legally, as an authentic employment relationship, it is worth remembering that relationship of employment is the legal institute created exactly to identify this type of social relationship, with the main objective of delimiting the field of application of labor rights and, at the same time, guaranteeing the effectiveness of these rights, considered as minimum parameters of the capital-industry relationship. work.

The employment relationship is the fundamental institute of the commitments around the essentiality of human rights and the socio-political-economic integration of the working class that were assumed in the pact for the reconstruction of capitalist society and that gave rise to the formation of the Welfare State. The employment relationship is conceived, therefore, as an imperative of public order, insofar as integration into the socio-economic-productive project of the Welfare State is automatic, involuntary and binding. The identification of an employment relationship, therefore, is not a favor that is done to the worker, nor a penalty that is imposed on the entrepreneur.

Quite the contrary, it represents revalidating and seeking to give effect to the pact in question. Every time arguments are sought to deny the employment relationship in effective relations of exploitation of labor by capital, the effect is a step taken towards all the social and human maladjustment that led us to two world wars and that has made increase social inequalities, hunger, misery and the various forms of oppression, which, in turn, constitute food for the breakdown of solidarity and reason itself, strengthening the foundations of authoritarian and dictatorial regimes.

It is impressive that after so many years of trying to overcome the liberal order and consolidate the Social State, practices that go back to the pre-capitalist era, when the argument of 'partnership' between landowners and workers provided the basis for the spoliation of their human condition. It is no coincidence, therefore, that the relationship between workers and companies that own applications are presented as 'modern servitude', 'digital slavery', or, in the simplest terms, 'uberization'.

And the argument artificially created and disseminated by the media still seeks to make believe that whoever exploits does a 'favor' for the exploited. As is insistently disclosed, anyone who has a dream will be able to realize it by working 'with' the Uber application (and not 'for' the application and, even less, 'for' Uber) and will do so without submitting to a standard , that is, being your 'own boss'. Those who manage to reach this condition are considered, then, as privileged beings. They would thus boast, as Ricardo Antunes sarcastically denounces, the 'privilege of servitude'!” (Case n. 0010112-89.2020.5.15.0032, Reporting Judge Jorge Luiz Souto Maior, 6th Chamber, 3rd T., TRT of the 15th Reg., Judiciary Cad. of TRT15, ​​DOU, p. 4430, 08.09.2022 ).

In any case, an important critical assessment needs to be made. It is that, in fact, the employment relationship has been very badly applied by such “operators” of the law, since the characterizing element of subordination has been understood as a state of submission, which is a profound error. Now, as said, the employment relationship is a legal status of greater protection to the human condition of male and female workers. Thus, its function is to remove the idea of ​​supremacy of the employer in relation to employment. In fact, the employment relationship seeks to subvert this logic, imposing limits on the employer's will. In the employment relationship, the employer directs the provision of services, but does not have power (or should not have) over the human being who provides the service, hence why the so-called punitive and disciplinary measures that, distortedly, have been seen to be applied are inappropriate. in employment relations, with the approval of the labor law world, without any legal provision.

So, concretely, what is needed is to rescue the historical concept of employment relationship, and redefine it, also including concerns related to racial and gender issues, which still structure the greatest ills of our society. It is not with the simple negation of the employment relationship and with the contempt for labor rights that a new stage in the regulation of labor relations will be reached in Brazil.

The challenge is to move forward and, to that end, proposals contribute nothing that, presenting themselves as critical and innovative, only reproduce and legitimize practices of unlimited exploitation of work and of the worker.

*Gustavo Seferian Professor at the Department of Labor Law at UFMG.

*Jorge Luiz Souto Maior is a professor of labor law at the Faculty of Law at USP. Author, among other books, of Moral damage in employment relationships (Studio editors).

*Valdete Souto Severo Professor of labor law and process at UFRGS and labor judge at the Regional Labor Court of the Fourth Region.

 

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