With no fuss, the interim measure (MP) is set by "Green and yellow employment" – which creates a new type of employment with the incentive to engage young people – represents a series of changes in labor legislation for all categories. Lawyers and experts disagree on the benefits and effectiveness of the proposals, but agree that they are mini labor reform. In the package, the government changes the rules of enforcement, penalties, profit sharing, working hours and professional records.
In addition, it introduces an INSS tax rate on all workers who receive unemployment insurance at a rate of 7.5% to 14%, allowing this time to be contacted for social security contribution purposes. For experts, taxing unemployment insurance to compensate for the exemption of entrepreneurs means creating a new tax for the worker.
The interim measure is already in place but will still be assessed by Congress to become law.
To compensate for the exemption of employers who enter the "green and yellow employment" program, the Ministry of Economy's Social Security Secretary, Rogerio Marinho, announced that social security contributions from unemployment insurance, now released, will be charged, and that the duration of the benefit of three to five months will count as a time of social security contribution. The indictment comes into force in March 2020.
According to the economy ministry, the contribution will be the same as workers employed, under the new rules provided by the pension reform, which was adopted on Tuesday (12). That is, rates range from 7.5% to 11%, depending on the pay range. However, since the unemployment insurance ceiling is currently US $ 1,735.29, the maximum rate would be 8.14% if the rule began to apply this year.
It also frees up other banks to pay unemployment insurance and salary compensation, not only Banco do Brazil and Caixia Federale.
Paulo Sergio Joao, a professor of labor law at HGV Dirito SP, criticized the measure and said the measure misrepresents the nature of unemployment insurance. For him proposing in practice means creating a new tax, burdening the employee who is most vulnerable:
"It's creating a new tax from a tax standpoint." They see it as an advantage to be out of work and to insure and tax. It is improper to promote this benefit in the search for a recipe. That's the wrong characteristic – says the teacher.
The new type of youth employment created by the Green and Yellow package provides that the FGTS termination penalty can be reduced from 40% to 20%.
If there is an agreement between the employer and the employee, the employee may receive FGTS indemnification in installments in advance during the month or each period of less than 30 days. This partial amount will be paid in conjunction with the proportional salary, 13th, vacation and allowance.
In the event of the employee's termination, this early indemnity should not be returned to the employee, even if the employee resigns or is fired for good cause, which would normally not be entitled to such payment.
In addition, under the new green and yellow contract mode, the employer's monthly contribution on behalf of the employer will be 2% – not more than 8%, as in conventional contracts – regardless of the amount of compensation and termination. 20% or 40%.
For Vantuilleh Abdallah, former president of TST, the 40% decline in CGTS deposit value was an old demand from employers.
– They wanted to reduce the amount of punishment for employees who employ "green yellow". This was a question for businessmen who complained a lot about the 40% penalty. The whole philosophy of the plan is to reduce the cost of employment and among these costs is the FGTS fine of 40% to 20% – explains Vantuil.
The interim measure that creates "Green and Yellow Employment" frees professional registration in the workplace. The standard will apply to all professions except as provided by hourly orders and advice. For labor lawyers, the proposal protects some professions such as doctors, engineers and lawyers who have professional associations under their own regimes, but also frees up other duties to be performed by unregistered professionals. Paulo Sergio Joao, professor of labor law at HGV Dirito SP, will be at the discretion of the company to decide whether or not to hire an unregistered professional to perform certain duties.
– These are some professions that have historically discussed whether they should be registered at the Police Station (Labor) for their professional practice, such as journalists and musicians. You do not need to be registered now to practice your profession. There are people who think they should have, but they eliminate bureaucracy and satisfy the interest of the contractual relationship – the teacher estimates.
The president of the Institute of Lawyers of Brazil (IAB), Rita Cortez, already disagrees. For her, the proposal is embedded in a broad context of changes in the rules for the enforcement and enforcement of penalties. Cortez points out that a lack of professional registration allows unskilled people to practice:
– To give up this record is to give up on overseeing and overseeing the work of qualified people, that is, to give up situations and qualities that justify engagement. How will the inspection be defined if the employers respect the norms (for practicing the profession) – asks the lawyer.
Supervision and penalties
So far, the CLT has determined penalties that have varied from case to case. Now, the sentence will now fuel the "economic size of the offender". In the first set of fines, "per capita" penalties will apply. for disregarding rules for individual workers. In this case, it will range between $ 1,000 and $ 10,000. The second set of penalties will be for more general offenses, called "changeable nature", which can range from $ 1,000 and could reach $ 100,000. In all cases, the penalties will vary from minor, medium, serious and very serious violations. The government text also establishes criteria for double-checking the prosecutor before imposing fines, in order to allow the prosecutor's first visit to the facility not to generate a fine, but a warning, with the possibility of regulation. The fine will only apply after the second visit if the injury is sustained.
Alain Marquez, partner of N.J. Tomas Braga and Cuch Adogogados, argue that the company can abide by the rules and comply with the law before being penalized. According to her, in the administrative process of appealing the labor inspection is very strict:
– I think the new way of applying penalties is very fair. Penalty breach notices are provided without the company being able to determine the reason for the assessment. The employer can only try to file a complaint within 10 days. The administrative appeal is different from the judicial appeal. You have only one chance of trying to justify yourself before you are often given a severe sentence. The dual view is of an educational nature. This is demand from employers, "says Alin.
Former wary is former TST president Vantuille Abdallah. He points out that the very model of hiring young people with the exception of companies has a number of rules and standards that need to be implemented to prevent the abuse and replacement of already employed:
– We have an offensive to change the supervision. I wonder how execution will work in practice. As you know, there is always a bad employer who wants to use the existence of a legal rule to use it. Do we really have abusive surveillance to prevent fraud? Abdallah asks.
Louise Miglora, professor of CCG Drito Rio, thinks it is important to improve the business environment, but believes that oversight of work cannot be completely abandoned:
– I think it is dangerous for the message given to businessmen. The government proposes to make the inspection more flexible by completing the Ministry of Labor. It is a bad message to entrepreneurs that they have "released a general". Be careful with that, ”says Miglora.
The interim measure (MP) changes bankers' working hours by allowing bank branches to open on Saturdays, which is not the case today. It also states that only bank resellers will be entitled to a six-hour workday. Any other position will have a normal eight-hour workday. Today, everyone working in banks has a working day of six hours a day (thirty hours a week). Even for cashiers, the measure authorizes a workload of more than six hours for which individual written agreements, collective agreements or collective agreements need to be agreed.
– I believe that the government has decided to make these changes with the large number of lawsuits dealing with bankers' working hours. Many have sued, arguing that their journey has been prolonged because the banking institution has classified them as government trusts, but in practice they have performed other functions as cashier and worked more than six hours of workload – explains former TST President Vantuille Abdallah.
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