On November 10, 2021, the Federal Government published Decree No. 10,854, responsible for establishing the Permanent Program for Consolidation, Simplification and Debureaucratization of Infralegal Labor Standards and the National Labor Award.
Seeking to consolidate, simplify and debureaucratize the entire infralegal labor order, the Decree (which has already been seen by several jurists such as the Infralegal Labor Regulatory Framework) reviewed more than 1,000 decrees, ordinances and normative instructions, organizing them and compiling them in collections according to the following topics:
I – labor legislation, labor relations and public labor policies;
II – safety and health at work;
III – work inspection;
IV – procedures of fines and appeals of labor administrative proceedings;
V – conventions and recommendations of the International Labour Organization – ILO;
VI – regulated professions; and
VII – administrative rules.
In order to always be able to easily locate the labor infralegal norm related to a given area of activity, the Decree allowed the inclusion of new themes by the Ministry of Labor and Social Security, but vetoed the issue of autonomous normative acts when there is a consolidated or compiled normative act that deals with the same theme.
Among the main points provided for in the Decree, we highlight the rules related to the electronic record of work, food stamps, transportation vouchers, work inspection book and outsourcing.
Electronic journey record
With regard to the electronic record of working hours, the Decree validated rules already brought in Ordinances 1510 and 373 of the Ministry of Labor and Social Security, providing for the possibility of pre-marking the interval period, the use of the point by exception (still in great debate as to its acceptability in jurisprudence);the impossibility of making changes, restrictions or automatic markings in the records made by employees, as well as not imposing prior authorization for overday registration.
As for food stamps, the Decree reaffirms the need for prior registration of the company in the Worker's Food Program (PAT), and to obtain the tax benefits provided for in the program can be: maintain its own meal service, distribute food or enter into a contract with collective feeding entities.
The Decree also vetoes the payment of food stamps in cash and recognizes that this benefit is not of a wage nature, is not incorporated into remuneration for any purpose and does not constitute a basis for the fgts.
In the transportation voucher, the measure should further impact the companies, since the sole paragraph of art. 108 and the caput of art. 110 of the Decree expressly prohibit the use of the benefit in public private transport services (here can be interpreted as private chartered buses) and individual public transport (passenger transport platforms such as Uber, 99Taxi, among others), as well as the replacement of the transportation voucher in advance in cash or any other form of payment, except for the domestic employer.
In Article 113, the Decree also prohibits the accumulation of the benefit of the transportation voucher with other advantages related to the transport of the beneficiary, with the exception of the provisions of the sole paragraph of Article 109, which allows to provide the voucher if the employer's own transport or the chartered does not fully cover the displacements.
Work Inspection Book
The Work Inspection Book undergoes a major reformulation, since it leaves aside the physical record and gains new totally electronic formatting. ELIT, the name given to the Electronic Work Inspection Book, becomes mandatory for all companies, whether or not they are employed, liberal professionals, charities, recreational associations or other non-profit institutions that admit workers as employees. Microenterprises and small businesses can join eLIT through registration.
Inspections and assessments
The Decree also dedicates an entire chapter to address the supervision of standards of protection to work and health and safety at work, referring to collective actions and strategies aimed at sectoral and interinstitutional dialogue, as well as the collective construction of solutions.
In the wake of the understandings of the Supreme Federal Court, the Decree brings rule specifically aimed at hiring service providers, scoring that the employment relationship is not available when the requirements of non-eventuality, legal subordination, onerosity and personality do not exist. Paragraph 5 of Article 39 is also clear in establishing that the mere identification of the worker in the contractor's production chain or the use of work tools or organizational and operational methods established by the contractor will not imply the existence of employment, even if the outsourced provides services related to the contractor's main activity.
Other normative acts
In addition to the work of reviewing the infralegal labor order, the Decree repealed several normal ones that had no validity or whose provisions were already exhausted, gathering the balance of this work in 14 other regulations that will be re-examined every two years to ensure the maintenance of simplicity and improvement of normative acts.
As the normative acts that are part of the Infralegal Labor Regulatory Framework considerably impact labor relations, the law firm FeC Advogados is available to clarify doubts and assist them in the practical application of these changes in all its themes.