Cesar Peres Dulac Müller logo

CPDMA BLOG

Category:
Date: November 20, 2019
Posted by: CPDMA Team

MP 905 amends CLT and reduces the power of the Public Ministry of Labor

Provisional Measure (MP) No. 905, which created the green-yellow employment contract and is called the new labor reform, limited the work of the Public Labor Ministry (MPT). The million-dollar fines established for non-compliance with the Conduct Adjustment Terms (TACs) signed with companies have disappeared. Now the highest value will be R$ 100K. In addition, the agreements will be valid for only two years – until then, they were generally valid for an indefinite period.

The rule also requires that all amounts collected in fines and penalties imposed for non-compliance with a court agreement or TAC are directed to the Program for Enabling and Physical and Professional Rehabilitation, Prevention and Reduction of Work Accidents.

The penalties provided for TACs, according to the provisional measure, can only exceed the ceiling if the company fails to comply more than three times with what has been established or in cases where they deal with recognition of an employment relationship - in this situation, the fine can reach to R$ 10 thousand per employee. The text to have validity of law depends on the approval of the National Congress. The purpose of TACs is to correct irregularities committed by companies, before any legal proceedings, which could have amounts even greater than those involved in these agreements.

For failing to comply with a TAC, an electronics company that was investigated for allegations of bullying at its headquarters in the capital of São Paulo was forced to air a campaign worth R$ 5 million against this practice in the main newspapers and TV stations in São Paulo. He still had to pay R$ 5 million in collective moral damages, destined to at least five reputable social institutions, previously approved by the MPT.

On the other hand, a factory suspected of hiring a service provider that would practice labor analogous to slavery, for example, signed a TAC in the amount of R$ 5 million in fines with the MPT of São Paulo for breaching a previous agreement. The amounts were reversed in social projects.

The MP amends article 627-A of the Consolidation of Labor Laws (CLT) and provides for the imposition of fines provided for in article 634-A, both by the Public Ministry of Labor (MPT) and by the labor tax auditors, now linked to the Ministry of Economy. The classification of fines, the classification by economic size and the nature of the infraction must still be defined in an act of the Executive Branch. The values will be updated annually on February 1st.

For lawyer Cássia Pizzotti, a partner at Demarest Advogados, the establishment of deadlines and maximum values for TACs should provide more security for companies. “TACs serve to adjust the company's conduct and should not be used with the intention of punishment”, he says. According to Cássia, many terms were established with millionaire values, with no expiration date and with obligations that were often impossible to fulfill.

On the other hand, he adds, the fines imposed by labor auditors in their inspections were generally very low. They were calculated in Tax Reference Units (Ufirs) and reached a maximum of R$ 400. Now, says the lawyer, the MP grants equal treatment. “The MP brought important criteria for companies to understand penalties and risks”, he says.

The path chosen by the government to make these changes, however, can be questioned, according to lawyer Carla Romar, from Romar, Massoni & Lobo Advogados. “The labor reform, which passed through Congress, was heavily criticized. The MP, which practically promotes a new reform, may suffer even more criticism”, he says. However, he adds, if Congress deems it appropriate, it could be converted into law.

Despite the questionable approach, Carla considers the period of two years for the validity of a TAC to be reasonable. “Today there are companies that have to fulfill a certain obligation forever. The penalty can come at any time. Companies are tied down even if there are changes”, he says.

Regarding the fines, Carla says that “they talk about millions of reais as if it were an amount that could be paid at any time”. For her, companies often “find themselves cornered by the MPT and end up paying extremely high fines”. But perhaps these MP values, according to the lawyer, are not enough to achieve the purpose of the Public Ministry of Labor. “These values that are too low would be a reaction [of the government]”, he says.

Lawyer Juliana Bracks, from Bracks Advogados, considers the changes that limit the MPT's performance to be “very bad”. According to her, there is no need for an expiration date for the TACs. “These are conduct adjustments to comply with the law. So in two years there is no need anymore?”, he asks. For her, the situation would be different in the case of a change in law. It would be necessary, he adds, to readjust the TAC, as there have been changes.

Contrary to the changes, the Public Ministry of Labor issued Technical Note No. 1. In the document, signed by the Attorney General for Labor, Alberto Bastos Balazeiro, and other attorneys, the agency states that it is not possible to discipline deadlines and amounts by provisional measure. of TACs.

According to the note, considering that the purpose of MP 905 was, in fact, to limit the scope and effectiveness of the TACs signed by the Public Ministry, “such a rule would be diametrically opposed to the very objectives outlined in the 2017 Labor Reform, of reducing the filing of demands before the Judiciary, as any attempt to limit the scope and effectiveness of the terms of conduct adjustment signed by the MPT would result in the proliferation of labor lawsuits”.

The Public Prosecutor's Office also emphasizes that, as the TAC has the nature of a legal transaction, “the provisions and obligations contained therein are assumed of their own free will by those who sign it”.

Source: Adriana Aguiar via Valor Econômico.

Return

Recent posts

Corporate name: get to know this asset class

Continuing with our series of posts explaining the differences between the classes of intellectual assets, today we'll look at the BUSINESS NAME. Although trademarks - the nature of which has already been described in the previous post - can sometimes be confused with business names, they are distinct legal institutes. The business name identifies the company by [...]

Read more
PERSE: legislative changes in the emergency program to revive the events sector

Law No. 14,859/2024: amendment of the Perse rules for the period 2024 to 2026. The Emergency Program for the Resumption of the Events Sector - Perse was created in 2021 with a view to helping companies linked to the events sector - the activity most affected by the COVID-19 pandemic, by reducing [...]

Read more
The extent of insurance cover in floods

The rains that have hit Rio Grande do Sul in recent weeks have destroyed farms, properties and vehicles. Even if they have insurance, car or property owners should check the coverage of their policies to see if they can get compensation. Basic insurance for cars and properties does not usually cover floods. Insurance against electrical breakdown, [...]

Read more
The agreement to sell the most famous slimming drug of the moment

It was recently reported that the Brazilian company BIOMM has signed an agreement with the pharmaceutical industry BIOCON to distribute in Brazil a drug similar to Ozempic, indicated for the treatment of diabetes, but used mainly to treat obesity. However, this will only be possible because the patent holder of the drug has certainly authorized, through a [...]

Read more
Get to know the “brand” asset class

Continuing with our series of posts explaining the differences between the classes of intellectual assets, today we're going to talk about the TRADEMARK. A trademark is a sign used to distinguish and identify a product or service. It is registered with the National Institute of Industrial Property (INPI), guaranteeing the owner exclusive use in [...]

Read more
Intellectual property gives the author, inventor or holder of knowledge the power to protect their rights.

Intellectual property gives the author, inventor and/or owner of the protected knowledge the power to protect their rights, and can, for example, prohibit third parties from producing, using, selling or importing their invention, as well as preventing the reproduction or imitation of their trademark, in addition to guaranteeing exclusivity to the owner of the creation [1] (ARAÚJO; BARBOSA; QUEIROGA; ALVES, 2010). [...]

Read more
crossmenuchevron-down
en_USEnglish
linkedin Facebook pinterest youtube lol twitter Instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter Instagram