Labor Reform Effectiveness And The Provisional Measure 808/2017

Author:Ms Ana Lúcia Pinke Ribeiro de Paiva, Stella Neves Ferreira Piauí, Marília Chrysostomo Chessa and Flavia Sulzer Augusto Dainese
Profession:Araújo e Policastro Advogados
 
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On November 11, 2017, the Labor Reform entered in force, by means of Law 13467/2017, which aims to promote the update of the Brazilian Labor Code ("CLT"), enacted in 1943.

In addition to the changes brought to affect more directly the material law, it was also promulgated the Provisional Measure 808/2017, which amended 17 articles of labor reform, providing for intermittent and autonomous work, representativeness in the workplace, working conditions for pregnant and lactating women and the 12×36 work shift, among others.

See bellow all the changes:

ECONOMIC GROUP

Before the Labor Reform

- It's considered an economic group whenever one or more companies – even though each company has its own legal personality – are under the direction, control or administration of another company, constituting an industrial, commercial or other economic activity group.

- Those companies are jointly and severally liable for the main company and each subordinate company.

After Labor Reform / Provisional Measure 808/2017

- It will be considered an economic group whenever one or more companies, each having its own legal personality, are under the direction, control or administration of another, or even when, even though each one is autonomous, they belong to an economic group.

- It does not characterize an economic group as a mere identity of members, and it is necessary, for the configuration of the group, to demonstrate integrated interest, effective communion of interests and joint action of its member companies.

- The retiring partner will be subsidiary to the company's labor obligations relating to the period in which he was a partner.

- The retiring partner will only be jointly and severally liable with the others, when fraud in the corporate change is proven.

PAID HOLIDAYS

Before the Labor Reform

- In Brazil, any worker has the right to 30 days of paid holidays per year. Such holidays can be annual, but only in exceptional cases will the holidays be granted in 2 periods, one of which cannot be less than 10 consecutive days

After Labor Reform / Provisional Measure 808/2017

- As long as there is the acquiescence of the employee, the holidays can be enjoyed in up to 3 periods, one of which cannot be less than 14 consecutive days and the rest cannot be less than 5 running days, each.

BANK OF HOURS

Before the Labor Reform

- Employees may be dispensed of the increase in their salaries if, under a written agreement or collective bargaining agreement, assisted by the Union. The excess hours worked get compensated by a corresponding decrease in another day. But the accumulated hours cannot exceed the sum of hours worked per week, in the maximum period of one year, or exceed the maximum limit of ten accumulated hours per day.

After Labor Reform / Provisional Measure 808/2017

- Can be adjusted by individual agreement;

- Compensation of extrapolated hours should be carried out within a maximum period of 6 months

TIME AT COMPANY'S DISPOSAL

Before the Labor Reform

- The time that the employee is available to the employer will be counted as effective work.

After Labor Reform / Provisional Measure 808/2017

- They will not be counted as time available, when the employee, by his own choice, choose to stay in the company's premises, as well as entering the company's premises to perform particular activities, among others: Religious practices; Rest; Recreation; Study; Feeding; Social relations activities; Personal hygiene; Changing clothes or uniforms.

PART TIME JOB

Before the Labor Reform

- It is considered part-time work, the work, whose maximum duration, does not exceed 25 hours per week.

After Labor Reform / Provisional Measure 808/2017

- It's considered part time job the work that the maximum duration does not exceed 30 hours per week, without the possibility of additional weekly hours, or even the work that the duration does not exceed 26 hours per week, with the possibility of adding up to 6 additional hours per week.

- Payment of overtime with an increase of 50% over the normal time value.

- The overtime hours of the normal working day may be compensated up to the week immediately following its execution or its acquittance must be made on the payroll of the subsequent month if they are not compensated.

12X 36 WORKING SCALE

Before the Labor Reform

- The employee works on a shift for 12 hours and has a period of 36 hours for rest before the next working shift of 12 hours starts. There was no regulation in CLT, so the terms are established by the companies and the Unions in Collective Agreements or Collective Bargaining Agreements.

- Precedent 444, from the TST, emphasizes that the validity of the scale in comment should be exceptional, when foreseen in Law, Collective Bargaining Agreement or Collective Agreements. In addition, the Precedent states that national holidays should be paid in double.

After Labor Reform / Provisional Measure 808/2017

- The 12 × 36 scale day will be conceded to the parties, by means of Collective Bargaining Agreement or Collective Agreement.

- The monthly remuneration covers the payments due for weekly paid rest and rest during holidays, and holidays and night work extensions will be considered compensated.

- It will be possible for the entities working in the health sector to establish, by means of Individual Agreement, Collective Bargaining Agreement, or Collective Agreement, the 12 × 36 scale day.

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