When a foreign worker provides services in Brazil the laws governing the contract are the laws of the country of origin or the laws of Brazil?
When a foreign worker provides services in Brazil the laws governing the contract are the laws of the country of origin or the laws of Brazil? This special article is about the foreign employee in Brazil and decisions of the Brazilian Labour Court on the demands arising from these relationships.
TST (Brazilian Supreme Labour Court) cancels precedent on the principle of "lex loci executionis".
The policy of the Labour Court was that the legal relationship should be governed by the laws of the country of service delivery, as specified in Statement of Precedent No. 207/TST, which was canceled by the Supreme Labor Court in April, 2012, with base on the vote of the Vice- President Minister Maria Cristina Peduzzi in the Process 93.2000.5.01.0019-RR-219000.
The summary, published in 1985, adopted the principle of lex loci executionis claiming to be the legal relationship governed by the labor laws of the country of service delivery and not those of local hiring. But the Court has long extended to all professional categories the application of Law No. 7.064/1982 that guarantee only to employees of engineering companies abroad, the right to labor more beneficial standard (whether the country of employment or service delivery).
And the legislature, aware of the law that established itself in TST came through the Law No. 11.962/2009, changing the wording of Article 1 of Law No. 7.064/82, extending the right to all workers employed in Brazil transferred by their employers to provide services abroad.
"Recent jurisprudential constructs, which have removed the application of Abstract No. 207... Indicate the prevalence of the principle of more favorable rule on the principle of territoriality," Peduzzi said the minister, adding that this trend has also been observed in the legal from other countries.
Foreign workers have the same rights as Brazilians.
The remarkable growth of the Brazilian economy in the recent years attracted the interest of large numbers of foreigners to work in Brazil. According to statistics from the Ministry of Justice (2012) there was a 57% growth in the number of foreign workers, reaching a total of 1.51 million in December last year (2011).
It should be noted at this juncture, the increase in the flow of immigrants from the countries of South America, as Bolivians, Peruvians and Paraguayans, mostly without a college degree and who see an opportunity here to improve their living conditions.
What is the profile of these foreigners who come to work for our country? A lot of young people have been trained in search of new experiences in smaller companies, which offer the opportunity for rapid growth. One cannot fail to mention illegal immigrants, which, despite this condition, constitute a significant workforce, as the Bolivians and Peruvians working as street vendors and laborers in the construction industry and clothing, especially in the State of São Paulo, with low education and qualification.
When working in the country, the foreigner shall have the same labor rights of an employee native of Brazil, as 13th salary, vacation and FGTS 30 days, among others.
Also worth mentioning the standard journey of eight hours per day or 44 per week, with one day off, preferably on Sundays.
There are numerous decisions by the Labour Court, in which foreigners claim the recognition of rights under the employment relationship.
The Third Chamber of the Superior Labor Court ruled that the Brazilian Labor Court has jurisdiction over the action of an Argentine engineer who worked for years concomitantly in Brazil and Argentina.
Fired after 23 years working in a company in the area of telecommunications engineering with subsidiaries in Brazil, the engineer asked the recognition of employment and rights arising. But had requests denied at the first and second instances.
The Minister Alberto Bresciani, rapporteur of the case, as there was service in Brazil "because there is no denying the national jurisdiction."
Another case, judged by the Sixth Class of TST in September 2006, opened an important precedent. A worker Paraguayan illegally in Brazil, won the right to sue thru the Labour Court after exercising the function of electrician for 17 years in a small company and have been dismissed without receiving severance payments and FGTS.
The rapporteur Minister Horacio de Senna Pires, granted the worker's appeal based on constitutional principles and device Mercosul Protocol of Cooperation, which provides for equal treatment among those born in countries that have signed the pact (Argentina, Brazil, Paraguay and Uruguay), in their respective territories.
Article 3 of the Protocol provides that "citizens and permanent residents of one of the States Parties shall enjoy the same conditions of citizens and permanent residents of another State Party, free access to the jurisdiction of that State for the protection of their rights and interests".
Requirements for work in Brazil
As in any country there are legal requirements for the stay of foreign workers in Brazil could not be different. It was Law No. 6.815/80, regulated by Decree No. 86.715/81, which defined the legal status of these workers in our country and created the National Immigration Council (CNI) - organ of the Ministry of Labour and Employment responsible, among other things, the formulation of immigration policy and coordination of their activities in the country.
The CNI establishes and directs the granting of work permits for foreigners who intend to stay here for some time or permanently. This authorization required by Brazilian consular authorities, is necessary for the granting of temporary or permanent visa.
The Ministry of Foreign Affairs issued a consular authorization registered in the passport, called "visa", allowing the worker to enter and remain in the country.
The visa can be temporary or permanent, and in the first case for those who see the country on a cultural vacation, mission studies, business, as an artist or athlete, student, scientist, radio correspondent, newspaper, television or agency foreign news, among others. Since the permanent visa is for those who wish to reside permanently in Brazil.
Since 2006 there was an increase in the number of permits for foreign workers. This is due, according to Paulo Sergio Almeida, former general coordinator of Immigration at the Ministry of Labour and Employment, the increasing investments in Brazil, mainly in the sectors of industry, oil, gas and energy, and that, due to the acquisition of equipment abroad.
There is a demand for the "coming of professionals specialized in supervision and implementation of the most sensitive steps in the deployment process of the equipment and technology transfer," Almeida said in an article published on the website of the MTE. But remember that the basic requirement for this professional is not coming occupy vacancy that may be filled by Brazilian workers.
However, this specialized professional is required to prove qualification and / or experience, which should be done through a request for authorization from the Ministry of Labour and Employment, through the presentation of diplomas, certificates or declarations of institutions which have played their activities.
New criteria for the authorization of these professionals work with temporary visas were established by Resolution No. 64 of 09.13.2005 of the National Immigration Council. According to this resolution, to demonstrate the qualifications or experience the candidate will need to demonstrate experience of two years alternately in the performance of mid-level profession, with minimum education of nine years or one year experience in the exercise of high level profession.
Liability to work underpaid
Despite the significant increase in South American migrants in recent years, remember that many arrive in Brazil illegally, with little education and few qualifications. How come in search of better living conditions, are subject to low-paid jobs. Proof of this are the recent cases reported in the press of immigrants from Bolivia and Peru found in conditions of contemporary slavery in São Paulo, workshops in sewing, making garments for a diversity of fashion labels.
In this sense, the Labour Court has dismissed civil suits filed by the Ministry of Labour against exploitation of this labor. A prime example was the action filed by MPT São Paulo in February 2012 against a large retail store for exploiting workers - mostly.
This was the first civil action on slave labor involving foreigners in urban Brazil. The SP-MPT requested, the Labor Court of São Paulo to advance relief (immediate suspension of this practice), plus punitive damages to the collectivity of workers worth £ 5million, to be reverted to the Fund for Workers (FAT). By the time the civil action was not dismissed.
After learning of the BBC report on a group of 25 foreigners working in the factory of a giant commodities producer in the Federal District, who worked in the poultry slaughter by halal method and lived in poor conditions accommodation in company, MPT and the Ministry of Labor conducted inspections to investigate allegations of mistreatment.
The case of this factory repeats in several Brazilian states.
Another unit of this giant commodities producer, located in the municipality Paraná State was processed by the Ministry of Labor of Parana through civil action in the Labour Court which granted an injunction banning the work of 30 Muslims in a drive by the company for outsourced perform halal slaughter.
According to prosecutors, outsourcing - made by the Group of Halal Slaughter - is irregular because the slaughter of animals is core activity of the company.
But Subsection 2 Specialized in Individual bargaining (SDI2) of the Superior Labor Court unanimously allowed the appeal in ordinary injunction to revoke the injunction issued by the Labor Court.
For the rapporteur Minister Pedro Paulo Manus, keeping these outsourced employees in the establishment of the giant commodities producer, with receipt of wages and other labor guarantees caters to corporate interests more than the prohibition on the provision of services, as suggested by the Labour Court, because there was guarantees the hiring of personnel would be exempt.