About the regulation of work by platforms

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By JORGE LUIZ SOUTO MAIOR

Key questions and answers about platform work regulation

The question pertaining to the regulation of work by platforms is on the agenda of the national debate. Intellectuals, academics, jurists, social and political scientists, as well as government bureaucrats and, above all, spokespersons for the interests of the companies that own the applications have spoken out about it, with great media repercussion. Workers who are professionally involved in this activity have also taken a public position.

Many approaches, however, especially when they disregard labor legal protection, instigate the need to bring some technical information related to Labor Law. More broadly, even many workers who work through applications refuse to be integrated into the CLT, as they often say. But are the reasons they have for that justifiable or, at least, are they not induced by some vice of will?

Trying to bring some contribution, especially to male and female workers, for a better understanding of the legal issues at stake, I bring below summarized answers to questions that normally appear in discussions on the subject. Let's go to them.

 

What is CLT?

First of all, it is necessary to talk about the negative rhetorical influence that the term CLT has exerted on some male and female workers. Now, the CLT is merely a legal device (Decree 5.452/43), which, although it was first published in 1943, has undergone numerous modifications over the years, the last of which, with greater intensity, in 2017 , in the so-called labor “reform”. Almost all of these modifications, over the years and, above all, in 2017, were aimed at reducing or making the rights of male and female workers more vulnerable, to reduce the cost of production and to facilitate and favor business interests.

And the CLT is just one of the documents that list labor rights. These, the rights, are fixed, mainly, in the Brazilian Constitution (of 1988) and in International Treaties and Conventions of Human Rights, as well as in several other laws that deal with certain subjects (FGTS; 13th salary; paid weekly rest; work; etc – just to name a few).

So, it would not be correct to say that whoever performs a job under the conditions achieved by this legal protection network is “a CLT”, since it is much more than that. The questions around the legal qualification go in the direction of knowing if the worker is an employee or a self-employed worker; whether it is part of an employment relationship or whether the relationship is a job without the characteristics of an employment relationship.

 

How does someone insert (or is inserted) in the CLT regime, or, more properly, in the employment relationship?

When the worker does not own the means of production and does not carry out an activity that is provided directly to the final consumer, depending, then, on selling his or her workforce to other people or companies that will exploit economically or satisfy their personal interest with the result of the work carried out, there is an employment relationship, which is just a name to legally designate this relationship.

All labor rights affect the employment relationship even when this legal relationship is not formally recognized by the parties or even when they expressly express themselves in the opposite direction. That is, even if the parties involved say that their relationship takes the form of self-employment, if the elements that characterize the employment relationship are present, employment will exist and the incidence of rights will come as an inevitable consequence.

The factual elements in question are: work provided to another person or company in a non-casual, remunerated and dependent manner.

 

What are the benefits of being CLT or, more properly, of being integrated into an employment relationship?

Renewing that integration into an employment relationship does not depend on express agreement in this regard, the benefits are represented by the automatic integration of labor rights established as minimum working conditions that the employer is obliged to comply with, such as: minimum wage; limitation of working hours; vacation; FGTS; 13o. salary, paid weekly rest, etc.

The employee will also have the benefit of a whole regulation that sets obligations to the employer with a view to promoting their health and preventing accidents, also having the right to be compensated for any accident at work experienced, a right that is extended to family members in the event of the worker's death. In addition, the employee will automatically be insured by Social Security and will participate, in a more direct way, including in a contributory way, within the logic of solidarity, of the entire state apparatus relevant to Social Security.

 

What are the losses or risks of being CLT, or, more properly, of being supported by labor legislation?

When one sees that the employment relationship is the reverse of self-employment, the first impression one has is that the employment relationship is worse because in it the worker loses his autonomy. This is a big mistake, as the employment relationship does not remove autonomy, since it is, in fact, the legal certificate that autonomy, in fact, did not exist. In other words, if someone works as a self-employed person, their legal status cannot be changed to that of an employee, as this is not a simple act of will.

But the opposite is also true, that is: if someone works as an employee, that is, without true autonomy, he cannot be considered a self-employed worker.

So, the CLT does not pose any risk of worsening the worker's condition, especially in the sense of "stealing" his freedom, because what happens is just the application of the law to the fact as it presents itself. in reality. If the conclusion, based on the verification of reality, is in the sense that one is facing an employment relationship, it is because in that concrete situation autonomy did not exist.

 

What are the differences between self-employment and salaried work?

Basically, the difference lies in the fact that in self-employment there is no intermediary between the work performed and the supply of the fruit of the work in the consumer market. The self-employed person works for himself, under the conditions he considers pertinent, and has the fruit of his own work for himself, offering this result, for the amount he deems appropriate, to whoever wants to use it.

In the employment relationship, what we have is the presence of someone or some business entity between the workforce exercised and the final beneficiary of the result of the work. For many people, who do not have the necessary means of production and lack a minimum of capital or professional training – or even the potential for individual insertion into market competition, the only option left is to sell their workforce in the context of an alien enterprise. . When this type of work is sold on a non-continuous basis, the employment relationship is considered as the basis for the incidence of rights that seek to prevent the relationship of dependency established from serving the employee, driven by competition from the market or by other moral and cultural deviations, for an unlimited exploitation of work.

 

Does the CLT, or, to put it more technically precisely, the labor legislation exclude the freedom of the worker?

Given the distinction mentioned above, the configuration of the employment relationship and, consequently, the application of the CLT and other legal labor provisions, do not eliminate freedom. In fact, as said, it is a testament that we are facing a relationship between people where freedom had already been suppressed. In any case, as the rights legitimized in the capitalist order do not go to the point of subverting the capital-labor relationship, that is, they do not represent a full emancipation of the working class, the set of rights inscribed in Labor Law, even starting from the recognition of the absence of freedom when someone is forced, in order to survive, to sell his or her labor power to the capitalist, do not operate to grant full freedom, but rather to prevent dependence from implying unlimited exploitation.

In any case, it is worth considering that Labor Law, in the part that reflects the achievements of social labor movements, instrumentalizes and legitimizes the struggles of male and female workers for better living and working conditions. In collective action, the working class finds legal support, including to build spaces of freedom and democracy in employment relations as well.

Given economic inequality, in dependent labor relations there is not, concretely, full freedom and Labor Law operates to minimize the effects of this relationship, it is worth noting, as appropriate, that without Labor Law, what remains is only oppression and the unlimited exploration of work and not a relationship with full freedom.

It is important to point out that it has already been found in various historical experiences that those who use the work of others to implement their business are recurrent in attempts to get rid of the limits imposed by Labor Law and, for this purpose, not infrequently, forge a situation of autonomy , giving an appearance of freedom to the worker, which, in fact, is nothing more than a “freedom” to choose how the work will be made available, which is almost always accompanied by the strategy of paying wages in accordance with production , inducing the “free” worker to “enslave” himself or “reify” himself by his own will to work without any limit to earn more, with the encumbrance that with the passage of time, in the face of the market law of supply and demand , a reduction in the hourly rate of work is promoted, which is even more facilitated when the employment relationship, driven by the fraud committed, is formally outside the labor legal protection.

 

Does the CLT, or, to put it more technically precisely, the labor legislation, grant the employer power over the employee's life?

Labor legislation, in principle, aims to limit the economic power of the employer. But, as it is a legal order of capitalist society, this same legislation recognizes the validity of the purchase of labor power and the possibility for the buyer to direct the execution of services in accordance with the interests of production. Directing the activity does not, however, represent supremacy of the employer over the person of the employee. It so happens that, in the Brazilian case, given the failure to fully overcome slavery, the implementation of labor legislation was only possible through the formulation of a conciliation with economic power.

Thus, in exchange for state recognition of labor rights that had long since been conquered by the social mobilization of male and female workers, legislation institutionalized in the 30s, in addition to criminalizing strikes and establishing state control over workers' union activity, it ended up granting employers a kind of “disciplinary” power, so that workers' conduct could be indoctrinated, all in line with the interests of conciliation promoted between the State and capital. It even envisioned the rhetorical suppression of class antagonism, through the rhetoric of integration into a single social body and the violent repression of the struggles of the working class.

This perversion of the objectives of Labor Law was consolidated in Brazil and even today it generates the effect of the formation of labor relations that reproduce forms of oppression of workers and, above all, of workers, and, even more, of black men and women workers. .

But it is important to understand that this is not a situation that was created by the CLT; legal regulation is just a reflection of the cultural, social, political and economic structures that permeate social relations and which, in the Brazilian case, were designed to incorporate capitalist ideals, but without completely overcoming the slave and colonial bases . The CLT, therefore, is an effect and not a cause.

Blaming the CLT for the cultural submission imposed by an act of force on the working class under capitalism and, with greater emphasis, in Brazil, as it is a country of dependent capitalism and which has not definitively broken with the foundations of slavery, is a very comfortable and that even generates the serious consequence of hindering the understanding of the factors that effectively historically constituted this situation and that still maintains it.

This deviation of focus on culpability, moreover, feeds back the argument in favor of work without the support of the CLT and labor rights that this document symbolizes, favoring the rhetoric of self-entrepreneurship, which only reinforces the logic of submission, oppression and the international division of labor based on central and dependent economies.

The challenge that arises, therefore, is to extirpate from the labor legislation the remnants of corporatism that was established, in Brazil, from the roots of slavery and to grant state powers to the industry in formation to control and “discipline” the working class.

From a legal point of view, this path has already been paved with the regulation introduced in the 1988 Constitution, which raised labor rights to Fundamental Rights, that is, a Labor Law undeniably integrated into the formulations of the national Social Democratic State. A look at the rights enshrined in the Constitution is imperative.

There are even several mechanisms to achieve this objective and the collective and organized action of male and female workers, especially when integrated into the notion of class, is the most promising way to achieve this objective. This is proven, moreover, by the recurrent initiatives of economic power to divide the working class and even to spread among workers and workers the values ​​that are characteristic of capital, such as individualism and entrepreneurship, but without altering the material bases that keep them dispossessed. of the means of production and devoid of capital. Consequently, only an appearance of freedom and autonomy is reserved for male and female workers.

Concretely, therefore, nothing justifies the simple escape from the CLT and the rejection of labor rights.

 

Is the worker obliged to work an 08-hour day in order to demonstrate the employment condition?

No. What the labor standardization fixes is the maximum limit of hours of work, being, in the current constitutional regulation, 8 hours a day and 40 hours a week.

Thus, a job carried out, for example, for 1 or 2 hours a day, even if it is on alternate days and not fixed in advance, even if the number of hours and days are defined by the employee himself, does not constitute an impediment to the recognition of the employment relationship. If this condition is already adjusted (even without being in writing, that is, by repetition), it is integrated into the employment relationship as a more beneficial condition for the worker, since, it is worth repeating, the labor standards are minimum guarantees, nothing preventing, therefore, the establishment of more favorable working conditions for workers.

 

Does a self-employed person earn more than an employee?

This comparison is inappropriate, as it is not the quantification of gain that defines the legal condition of those who sell their workforce to satisfy the interests of others. If the sale is made with effective autonomy, there is no employment relationship. Otherwise, that is, if the sale is made with the dependency conditions, as answered in question 2, there is an employment relationship and all labor rights are automatically directed to this worker.

The issue is only pertinent, therefore, if we are dealing with an employment relationship that has not been formally recognized, that is, with regard to fraud, better qualified as illegality. In this situation, the worker's gain from the costs of the suppressed rights may, by decision of the person hiring, be included in the gain.

Thus, formulating a strictly monetary comparison, it may be that there is a remuneration advantage of the unregistered employee (under false condition of autonomy) over the employee.

But this advantage is only apparent, since, under these conditions, all the risk of the activity is transferred to the worker, while the basis of the employment relationship prevails the principle that it is up to the employer to assume all the risks of the economic activity and the work performed. Furthermore, this “autonomous” is not covered by any salary policy and even by the salary achievements that are achieved through union action.

Thus, the tendency, over time, is the loss of the remuneration advantage and even the loss, without any guarantee or power of resistance, of the job itself, not to mention the work conditions that are adverse to health and safety.

 

Does inclusion in the CLT, or, more technically precise, integration in the field of labor legal protection, reduce workers' earnings?

The formalization in the CLT of a worker who was in a situation of fraud to the legislation does not generate for the employer-fraud the right to reduce the remuneration paid. The legally provided discounts for contributing to the Social Security system must therefore be made without implying a reduction in the net monthly earnings previously earned, except for the portion owed by the worker.

One must be aware of the economic blackmail carried out by labor law fraudsters when they express the “argument” that “more rights” implies “lower wages” and even fewer jobs.

Now, the value of wages cannot remain under the exclusive control of the person who buys labor power. The wage level must be an equation of the confrontation of the capital-labor forces and the working class can only solidly integrate itself into this conflict through a collective organization that is, exactly, what the Labor Law, constitutionally established, aims to ensure, fulfilling add that the payment of wages for production aimed at promoting a situation of work until exhaustion, due to the practice of excessive working hours, constitutes a violation of labor legal protection.

In addition, a simple reduction of jobs, promoted by employers as a retaliation for the consecration of rights, from the point of view of the application companies' own economic interest, would not be feasible, because it would result in a lack of demand, even generating the opening of space in the market for new ventures in the same field.

Incidentally, considering the unlimited amount of working hours to which couriers are currently submitted, despite having the “freedom” of being able to “choose” days and times to work, the tendency of a regulation along the lines of the CLT is going to increase of jobs, since labor legislation limits working hours and burdens overwork, including judicial convictions of the employer to pay compensation for moral damages when there is a situation of exhausting working hours.

The fact is that when a collective organization of the working class is assumed, cohesive in the defense of their rights, the “fears” that originate from the threats made by employers are unjustifiable, because, after all, if workers depend on the sale of their strength of labor to survive, capital depends on the work provided by the working class to constitute itself as such and to be reproduced.

That is why the most common and effective way that capital has used to impose its will is to prevent the establishment of a situation in which it has to directly measure forces with the working class. by opinion-forming mechanisms, that employees came to be called “collaborators” and, later, “autonomous”. In addition, allied to constant threats, the business sector has done everything to divide the working class and to encourage workers to reproduce, as if they were their own, the values ​​that are dear to the dominant business class, in its objective of earning profits through the exploitation of labor power.

 

Do all workers supported by the CLT, or, more technically precise, supported by labor legislation, have the same rights and obligations?

There is a widespread “fear” that has spread even among male and female workers through apps that the peculiarities in which the work is carried out and which are presented as advantageous to them, above all, the “freedom” to choose days and hours of work, will be lost with its inclusion in the CLT. It happens that, as already mentioned, the CLT is just one of the regulatory devices of the employment relationship and also does not prevent the regulation of the work carried out in certain professions in a specific way, to meet their peculiarities, without retracting basic rights, of course.

This is how the work of: aeronauts is regulated by general laws and a specific law; of oil tankers; of journalists; of the employed lawyers; of the teachers; of professional soccer players, etc.

And let's think about it: if even a football player, who, in the case of some of them, earns veritable fortunes and acquires status of “stars”, is a CLT employee, what advantage can be seen, concretely, in the postulation of a non-autonomous job without labor rights?

Nothing prevents, therefore, a specific regulation of work through applications that, based on the recognition of the employment relationship and the consequent integration into the Social Security system and the totality of the labor legal protection network, establish working conditions that meet the interests of ( the) workers, especially in the sense of not submitting to authoritarian, punitive and anti-democratic regulations, or to economic setbacks that are envisioned by companies that own applications, as a way of compensating - or retaliating - for the implementation of Fundamental Labor Rights in the scope of its business.

The fact is that the improvement of living conditions and earnings of male and female workers who work professionally through apps does not need to start from the lowered point of withdrawing rights historically conquered by the working class, because if that is the case, regulation in the end achieved, whatever it may be, will represent a step backwards in relation to what already exists. Especially because the recognition and enforceability of these rights does not prevent other regulatory advances from being intended and achieved.

*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).

 

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