For judge, there is no personality and habituality between employee and company
The scenario of the employment relationship between those who use applications to work remains uncertain.This time, the labor discussion involved the company Loggi Tecnologia, specialized in autonomous transport of motorcycle workers. In the first instance, the Labor Court of São Paulo understood the lack of employment relationship between a motorcycle boy and the company due to lack of some requirements. The decision still has to be appealed.
According to Judge Raphael Jacob Brolio, Loggi only makes the digital platform available to registered motorcycle players, which facilitates communication between them and customers who seek freight services through the application.
In requesting the employment bond, the motoboy alleged fraud to labor legislation and requested that the employment relationship be recognized following the Consolidation of Labor Laws (CLT).
On the other hand, Loggi maintained that its activities are not related to transportation, as it is a "mere digital platform that aims to facilitate and increase the relationship between autonomous motorcycle drivers and their corresponding consumers who require these charter services".
According to Loggi's representative, Juliana Clemente, there is no way to recognize the labor bond in the business model of the company that uses technology to create a virtual environment that brings together someone who needs a particular service from those who provide this service.
"There are not enough grounds for the recognition of labor ties in relation to those who, of their own free will, decide to register on the online platforms of application companies, so that they can take advantage of their technology services and thus expand their customer catalog more easily and efficiently," he said.
Brolio, who serves as a substitute judge of the 20th Labor Court of São Paulo, denied the employment relationship between the company and the motoboy and stated that five requirements are needed to set up an employment relationship: being the individual worker; customary in the provision of services; personality of the provider; onerousness; and legal subordination.
"In the present case, I note that the work model chosen by the complaining motorworkers did not present the typical characteristics of the employment relationship mentioned above, nor was it fraudulent in relation to the labor legislation in force", says excerpt of the sentence, handed down in Case 1001674-95.2016.5.02.0020.
According to Brolio, none of the requirements were met by the motoboy, specifically the habituality, personality and subordination.
The judge also stated that it was the worker himself who determined his working hours and that there was no minimum frequency established. In addition, there was nothing to direct the freight service to a specific person, being its impersonal distribution and even gave the motoboy the right to refuse deliveries. Finally, Brolio stated that there was no personality in the relationship by the mere requirement of a prior registration of workers, since it is a measure of prudence and security.
He also stressed the need to modernize labor law to monitor social and technological changes, always seeking to ascertain the real truth of the facts brought in the concrete case.
"It is true that Labor Law needs to modernize its concepts in order to follow the recent social and technological changes – such as the relationships experienced by the parties now litigants – but always seeking the legal and principled framework based on the real truth of each concrete case, in the light of Articles 2 and 3 of the CLT and the principles that guide the Juslaboral Law and the Constitution of the Federative Republic of Brazil", Said.
C&A was also sued by motoboy who asked for recognition of the employment relationship because it provided its motorcycle services to the company.
However, the judge decided not to hold the clothing brand responsible for lack of evidence, since, according to the judge, the motoboy also provided his motorcycle services to other companies in the Loggi application.
According to labor lawyer Lucas Wicher Marin, Loggi's business model does not generate new employment relationships, but in an autonomous relationship, of mutual partnership, in which the worker and the consumer benefit simultaneously.
Labor lawyer Daniel Chiode draws attention to court decisions that take into account the change in the working relationship and the technology that can be used. Other decisions, he says, bring a "Manichean" view of the work and continue to try to frame current situations that were not foreseen in the Consolidation of Labor Laws (CLT).
Chiode also points to so-called disruptive technology, which includes apps like Uber and Airbnb. "The decision regarding the Loggi company comes in harmony with something that is ahead of clt, or any other labor legislation, which is disruptive technology," and continues:
"We are changing eras and legislation is not able to keep up with technological innovation. There's no point in creating a law to predict these situations. What already exists is civil legislation and the regulatory framework of the Internet, which are far ahead of clt", he says.
According to lawyer Cristiane Rossi Pilon, who represents Loggi in the case, the decision signals the possibility of formation of understanding that recognizes the existence of new modalities of digital platforms providing agency services to clients and motorcycle scowners, without this configuring employment relationship.
The discussion on the employment relationship of services provided from digital platforms is known by the Judiciary. As an example, Labor Justice has looked at the relationship between Uber and drivers using the app in different ways.
In April, the Labor Court of São Paulo recognized the employment link between Uber and a driver. In all, the company was ordered to pay R $ 80 thousand to the driver, including notice, thirteenth salary, vacation with an increase of a third, FGTS and compensation for moral damage.
The substitute judge Eduardo Rockenbach Pires, of the 13th Labor Court of SP, cited the capitalist social relations when deciding that the driver's work was performed in a subordinate way in the generation of goods – in this case, the transport service – whose circulation provides profit to the company.
In the same month, the Labor Court in Gama, the satellite city of Brasilia, rejected the claim that there is an employment relationship between the company and another driver.
According to Judge Tamara Gil Kemp, holder of the Gama Labor Court, the driver worked autonomously as a partner and sharing earnings with Uber. In addition, it considered that there was no subordination or rigor in working hours.