Publications

Category: Capital markets

The Brazilian Securities and Exchange Commission (CVM) published on March 22, 2023, the CVM Resolution 180, which entered into force on April 3, 2023. The new rule amends CVM Resolution 80, published on March 29, 2022, which regulates the registration and the provisions of periodic and eventual information of the securities issuers, and CVM Resolution 160, published on July 13, 2022, which sets forth provisions related to public offerings of primary and secondary distribution of securities.

CVM Resolution 180 arose from an internal letter, sent to the General Superintendent of CVM, and subsequently sent to deliberation and approval of the CVM’s Collegiate, in a meeting held on March 21, 2023. The regulation was not submitted to the public consultation process because it only had specific and punctual changes. There was also no prior regulatory impact analysis, as its objective is precisely to reduce certain regulatory requirements.

The motivations for the edition of the new resolution were, among other aspects:

• clarify the concept of frequent issuer of fixed income (Emissor Frequente de Renda Fixa - EFRF);
• provide for the application of the automatic rite in subsequent offers of shares of closed-end investment funds;
• specify the times when documents previously reviewed by a self-regulatory authority must be submitted to the autarchy; and
• Optimize the process of requesting registration of the offers and the issuers.

CVM Resolution 180 modified certain wordings of the Exhibit C of CVM Resolution 80. The fields not required from category B companies in the reference forms were reviewed, in order to standardize the use of the marker "X" as an indication of non-enforceability of a given item or sub-item.

In addition, with the amendment of article 5, paragraph 2, of CVM Resolution 80, the flow of applications for issuer registration was changed. With this, the technical area will manifest itself only in cases of insufficiency of the documentation presented in the application for registration of the issuer.

In order to eliminate the inquiries that have arisen about the drafting of the reference forms, footnotes 90 and 91, which provided, respectively, about the cases and methods of presentation of the reference form and on the disclosure of the grouping of employees of a given organization by diversity indicators, have also been deleted.

In response to a formal request sent by the Brazilian Association of Financial and Capital Markets Entities (Anbima), the new resolution amended article 38-A of CVM Resolution 80 to establish compliance with the provisions of CVM Resolution 160 with respect to the EFRF concept. The change aims to eliminate doubts about the possibility of the offers benefiting from the automatic rite, in the hypothesis of offers that have a single debtor of securitization security backing and this one fits as an EFRF.

After amending article 26, item VII, of CVM Resolution 160, CVM Resolution 180 also allowed the use of the automatic rite in offers aimed at professional and qualified investors – as well as in subsequent offers – intended for investors in general, provided that they have prior analysis by a self-regulatory entity.

The new resolution also changed the application flow for the registration of offers, with the amendment of article 37, paragraph 1, of CVM Resolution 160.

The measure optimizes the process of analyzing the requests. Henceforth, the technical area will only contact the applicant if the documents submitted are insufficient. After ten days from the request for registration of the offer, if the applicant has not been contacted, it will be assumed that the documents submitted are sufficient, and there is no longer the need for tacit confirmation by the technical area.

The Brazilian Securities and Exchange Commission has been making several regulatory changes in recent years in order to optimize the securities issuance process. The changes promoted by CVM Resolution 180 are in line with this movement and seek to clarify and specify certain points identified in the application of CVM 80 and CVM 160 resolutions to further facilitate the procedures related to the offers.

Category: Tax

The Complementary Law Project (PLP) No. 79/2023, presented in the Federal Senate on March 30, 2023, allows the extension of the term of the tax and financial-tax incentives of ICMS (Tax on the Circulation of Goods and Services) reinstituted under the terms of Complementary Law No. 160/2017 for another ten years.

With the extension, the States that reinstituted the tax incentives will be able to grant and extend the referred incentives  until December 31, 2042 (according to the current legislation, the final term is December 31, 2032).

In addition to the extension of the term, PLP No. 79/2023 also revokes the gradual reduction of 20% for certain tax incentives as of 2029. This rule is applicable to the tax incentives related to commercial activities, interstate transactions with agricultural and vegetable extraction products in natura and to the maintenance and increase of port and airport activities related to international trade.

PLP 79/2023 also aims to strengthen compliance with the legal certainty principle and the acquired right for taxpayers who already use the tax incentives. In this regard, the text establishes that, although the granting State may revoke or modify the granting act or reduce its scope or the amount of the tax incentive, it must be ensured the enjoyment of the incentives according to the terms and conditions by which they were granted.

Therefore, the revocation or amendment to reduce the effects of tax incentives will only produce effects for new beneficiaries, protecting those who already enjoyed the aforementioned regimes.

PLP No. 79/2023 has as its main justification the fact that tax incentives are relevant tools for promoting development policies and reducing regional inequalities, generating socioeconomic results in attracting entities to certain specific regions.

The justification also mentions the existence of tax reform proposals (PECs No. 45/2019 and 110/2019) and the possibility of future extinction of the ICMS. However, it is highlighted that the competence of the States and the Federal District, as currently in force, will remain for a certain period of time. The extension of ICMS incentives is necessary to safeguard them, with stability and predictability, during any transition period.

Category: Compliance, investigations and corporate governance

The increasing demand of the market and society for companies to adopt ESG (Environmental, Social and Governance) principles has brought to the business scene a new unfair conduct: greenwashing.

Greenwashing is a term used to designate deceitful marketing strategies regarding sustainable practices that do not necessarily fall into the company's actual practices. It can be used to mislead consumers into believing that the company cares about environmental responsibility, without actually adopting the sustainable actions it advocates.

The use of speeches and advertisements on alleged eco-friendly products or initiatives (which, in reality, are not that sustainable)– has already been employed by big companies that, later on, were caught. Besides the legal consequences, this conduct also brought damages to these companies’ image, credibility and reputation, which inevitably led to financial impacts.

Integrity issues are getting increasingly relevant in the corporate world and stakeholders are paying more attention to it.  This means that greenwashing practices can be identified more easily – either by verifying that a particular product is not as eco-friendly as advertised or that an environmental practice was not as sustainable as publicized.

Despite the profit earned during the period in which the inaccurate or misleading information was portraited, the identification of greenwashing may subject the company to heavy fines from regulatory agencies, loss of market value or decrease in the sale of its products, all due to the publication of negative medias showing the false marketing strategy that the company adopted and its actual activities.

However, greenwashing is not always necessarily deliberated. Many companies can greenwash without even realizing what they are doing.

For example, a company that advertises having a sustainable supply chain (and, in fact, internally it really does). However, in spite of that, the company does not investigate how their third parties work. Such situation can also be considered as greenwashing since the term does not only concern the company's operation and internal practices, but also how its third parties perform their daily activities.

That is when the “G” (governance) begins. The employees responsible for the corporate governance act to guide the actions of the company and to implement measures that confer legitimacy and effectiveness to its sustainable practices, avoiding or at least mitigating the risk of greenwashing.

Corporate governance is the system by which companies are directed and monitored. It involves not only the board of directors and partners, but also management, employees, customers, suppliers and other stakeholders.^[1]

When an efficient corporate governance system is adopted with transparent practices, greenwashing can be avoided and the economic value of a company is optimized in the long run. Moreover, good corporate governance contributes to the improvement of the quality of the organization's management and to the attraction of new investments. After all, when there is a well-structured governance, the "E" and the "S" of the ESG are effectively developed and complied throughout the company.

Below, we list a few integrity measures that can make a difference in the corporate governance of a company. These measures are not exhaustive and should not necessarily be implemented in the order considered below. However, they have been proven to be essential in strengthening sustainable practices, as well as promoting a work environment of respect for the integrity of the company.

• Implement a complete code of ethics, as well as social and environmental policies applicable internally and externally: documents are imperative for the establishment and dissemination of the company's guidelines, in addition to highlighting effectively sustainable practices.
• Dissemination, communication and training strategies: documents alone are not enough to create an organizational culture aligned with environmental issues and capable of engaging employees. It is essential that these documents are disseminated in banners, pamphlets and specific trainings to employees and third parties, specifically about the content of policies and other relevant conducts. With such practices, knowledge about internal conducts and rules will become a commonplace throughout the company.
• Commitment from senior management: it is extremely important that senior management strengthens integrity and ESG guidelines in its speeches and communications, highlighting these practices on a daily basis. When we refer to senior management, besides the directors and the president, it is also necessary to include managers and other supervisors, who, when observing and promoting ethical norms and conducts, pass that example on to their subordinates, even if indirectly (the so-called tone at the top).
  
  
• Implementation of efficient internal controls when hiring third parties: the effectiveness of internal controls is critical to mitigate the risks of greenwashing. As mentioned, it is possible that many companies do not even realize that they can be committing greenwashing when disclosing certain information and practices.

Therefore, it is recommended the establishment of procurement policies, not only to verify if a supplier has expertise to perform a service, but also to analyze issues, such as:

• Does the third party have appropriate environmental and labor processes?
• How is the third party production chain?
• How are the third party products disposed?
• How are internal integrity practices of the third party disseminated?

Having a system of internal controls allows the company to be aware of the attitudes of its third parties and makes it easier to disseminate its own environmental initiatives to other companies.

• Conducting risk assessments focused on social and environmental aspects: many risk assessments are based on large materialized contingencies. Although these analyses consider environmental aspects, they generally cover existing infractions or fines.

It is also relevant for the company to conduct preventive risk assessments, making the "E" effective within the organization. This means carrying out inspections to be able to anticipate environmental risks generated by the company's everyday decisions (construction, renovations, sewerage, etc.) and act beforehand on what can be improved, considering the least possible environmental impact.

As already pointed out, these practices are not exhaustive. Considering that there are companies with  different structures, sizes and social capital, each of the suggestions outlined here should always take into account the reality of the company and its market.

It is possible to alter several internal proceedings on the subject in existing areas (such as legal, audit and human resources) or through an external consultancy, to start off the path to show real environmental concerns. When hiring an external consultancy, it will be up to the company, to maintain the practices pointed out by the consultancy, with the appropriate updates, considering the internal resources available.

^[1] Definition proposed by the Brazilian Institute of Corporate Governance.

Category: Arbitration

In force since May 2, 2022, the Brazilian Securities and Exchange Commission’s (Comissão de Valores Mobiliários – CVM) Resolution 80/22 consolidates and updates the capital market’s main regulatory standards on the mandatory disclosure of information by issuers under its supervision – i.e. distributors of securities admitted to trade in markets regulated by the agency.

One of the main novelties brought by Resolution 80/22 is the duty to disclose corporate disputes. This requirement is provided for in item XLIII of article 33 of the Resolution, which lists the information that may be provided by companies registered under category “A” (issuers authorized to trade any securities in the market regulated by CVM). This includes confidential arbitration proceedings, as provided in Annex I of Resolution 80/22.

Even before it was approved, the new rule had already been generating much debate within the legal community, due to its possible impacts on the confidentiality of arbitration proceedings, considered one of the greatest advantages of arbitration by its users.

If, on the one hand, publicly-listed companies’ activities are governed by the general rule of transparency and the duty to inform – ensuring the broad, adequate, and timely disclosure of relevant information to investors – on the other hand, confidentiality ensures the protection of sensitive information and has been applied practically automatically in corporate arbitrations involving publicly-listed companies.

The issue of making the confidentiality of arbitration proceedings compatible with the duty to inform is especially relevant in Brazil, because it is one of the few jurisdictions in which arbitration has become the prevalent method for resolving corporate disputes involving publicly listed companies. In fact, arbitration is mandatory for companies listed in B3’s special listing segments.

Context in which CVM’s Resolution 80/22 was enacted

CVM’s former Instruction 480/09 (ICVM 480/09) already provided, in its Annex 24 (item 4.3 et seq.), that companies registered under category “A” should disclose, in their annual reference forms, the existence of any information that may be relevant for investors about judicial, administrative, or arbitral proceedings that were not under secrecy and to which the issuer or its subsidiaries were party.

With regard to confidential proceedings, item 4.5 of Annex 24 provided that the issuer should only “analyze the impact in case of loss and disclose the amounts involved” (emphasis added).

Subsequently, CVM’s Instruction 590/17 (ICVM 590/17) included the duty to disclose the initiation of arbitrations that could affect the economic and financial situation of the company in the non-exhaustive list of material facts subject to disclosure (article 2, sole paragraph, item XXII of the current CVM Resolution 44/21).

With the intention of expanding the scope of disclosure, in February 2021, CVM presented a proposal to amend ICVM 480/09 to the market, through which it stated its intent to provide investors with greater visibility of disputes (directly and indirectly) involving the issuer.

The proposal, which was the subject of extensive debate in a public hearing (see article on the Public Hearing 01/21 held by CVM’s Superintendence of Market Development – SDM), culminated in the approval of Resolution 80/22, which:

• establishes the duty to disclose corporate disputes for companies registered in category "A" and foreign companies;
• defines the term corporate disputes (demandas societárias), which are subject to disclosure (see article that details the scope of the term corporate disputes); and
• sets out guidelines for such disclosures, listing the information on corporate disputes that must be divulged by the regulated issuers and the applicable deadlines.

On May 13, 2022, as Resolution 80/22 came into force, CVM's Superintendence of Corporate Relations also released Circular Letter 3/2022-CVM/SEP, informing publicly-listed and foreign companies about the duty to disclose corporate disputes that fall under the scope of Annex I of Resolution 80/22.

These disclosures should be made through CVM’s “Sistema Empresas.NET” channel, under the category “Disclosure on Corporate Disputes” (“Comunicação sobre Demandas Societárias”).

New rules on the disclosure of arbitration proceedings

in its Annex C, CVM’s Resolution 80/22 restates the guidelines that were formerly set out in ICVM 480/09 on the disclosure of judicial, administrative, or arbitral proceedings to which the issuer or its subsidiaries are party. However, in its Annex I, the Resolution also establishes new duties to disclose more detailed information, directed especially at arbitral proceedings.

article 1, paragraph 2, of Annex I of the Resolution is especially relevant when it comes to discussing the relativization of confidentiality in arbitration proceedings, as the referenced provision establishes that the confidentiality imposed by arbitration agreements and/or the rules of arbitral institutions does not exempt companies from disclosing all of the information required by Resolution 80/22.

In light of this provision, there is no doubt that, even when parties expressly opt for confidentiality in their proceedings – via the underlying arbitration agreement or by selecting the rules of arbitral institutions that establish confidentiality as a rule –, the duty to disclose any and all information that falls within the scope of Resolution 80/22 shall prevail. The only information exempted from disclosure by Resolution 80/22 is that which is expressly classified as confidential by law.

Article 2 of Annex I lists the basic information that must be provided about the initiation of arbitration proceedings and the developments of such proceedings.

In this sense, the Resolution provides that, once the initiation of the arbitration proceeding has been disclosed, companies must (within seven working days from the submission of the notice of arbitration or its receipt), also disclose:

• the parties involved;
• the amounts, assets or rights involved;
• the main facts relevant to the dispute; and
• the claims presented.

The following developments over the course of the dispute must also be disclosed, always within seven working days from date on which the party becomes aware of them:

• the submission of an answer to the request for arbitration;
• the execution of the terms of reference, or the equivalent document indicating the definitive claims made in the proceeding;
• the issuance of decisions on requests for injunctive relief, arbitrators’ jurisdiction, the joinder or exclusion of parties; and
• the issuance of partial or final arbitral awards.

Finally, in the event that the parties to the dispute execute a settlement agreement over the course of the proceeding, this information must also be disclosed within seven working days from the submission of the executed settlement agreement (presumably, to the arbitrators), with an indication of the amounts and the parties involved and “other aspects that may be of interest to the shareholders” (item IV of article 2).

It is worth noting, however, that the wording of the header of article 2 – “[t]he issuer shall disclose to the market relevant information relating to dispute, including: [...]” (highlighted) – suggests that this is the minimum information to be disclosed.

Therefore, it remains at the discretion of the company’s investor relations officers/legal representatives to disclose additional information related to ongoing corporate arbitration proceedings, in addition to those mandatory disclosures expressly listed in article 2.

Regarding the compatibility of the new rules for the disclosure of information related to corporate disputes with the existing rules that regulate the disclosure of information about material facts to the market and investors, CVM’s Resolution 80/22 recognizes that, if the existence of corporate disputes or the developments of such disputes constitute a material fact under the existing applicable regulation, the company is allowed to disclose only the notice of the occurrence of a material fact, provided that such notice contains all of the information required by Resolution 80/22 (§4 of article 1 of Annex I).

The terms of the sole paragraph of article 2 are also noteworthy, as this provision dispenses the submission of the entire content of the documents cited in Annex I by the company, while the proposal originally submitted by the CVM for discussion in a public hearing left doubts about the need to disclose full copies of the relevant procedural documents – which would possibly exceed what is necessary for investors to make informed decisions.

The new rules are mandatory in relation to corporate disputes initiated after the Resolution 80/22 entered into force and optional for those disputes initiated previously.

It is expected that, with the new obligations to disclose corporate disputes, CVM’s objectives will be met – that is, that investors of companies subject to these rules will have access, in an adequate and timely manner, to information on corporate disputes that may influence their decisions.

Regarding the potential impacts of CVM’s new guidelines on the choice of arbitration as a venue for the resolution of corporate disputes, we believe that CVM’s Resolution 80/22, as approved, will not be a major disincentive to arbitration. It will be necessary, however, to carefully monitor how CVM will interpret these new rules in cases of possible doubts/divergences surrounding the scope of the new disclosure obligations.

Category: Labor and employment

During the covid-19 pandemic, since in-person medical examinations were not allowed, the federal government issued Law 13,989/20, which allowed the use of telemedicine for the duration of the public health emergency.

However, with the declaration of the end of the state of public health emergency of national importance on April 22, 2022 (GM/MS Ordinance 913), the use of telemedicine for medical examinations has lost its legal basis.

To allow and regulate the continuation of this practice, the federal government published, on December 28, 2022, Law 14,510/22. Besides repealing Law 13,989/20, the norm authorizes and definitively governs the practice of telehealth^[1] in Brazil.

Despite the legal authorization, there are still doubts about the possibility of performing occupational medical examinations (upon hiring, return to work, change of function, periodically, and upon dismissal) remotely.

But, after all, is it possible to use telemedicine to assist workers in occupational examinations after the enactment of Law 14,510/22?

Before the covid-19 pandemic, there was no express legal provision authorizing the use of telemedicine to perform these exams. Only in 2020, at the height of the health crisis, Federal Law 13,989/20 and Ordinance 467/20 allowed the use of telemedicine during the pandemic period. None of these standards, however, expressly established that telemedicine could be used in occupational medical examinations. Many questions then arose and remained unanswered.

At the time, there was a lot of resistance from the medical boards regarding the use of telemedicine for occupational medical examinations. It was emphasized, above all, that direct, face-to-face clinical examination of the patient was indispensable.

On this subject, the Federal Board of Medicine (CFM) issued CFM Opinion 08/20, according to which article 3 of Law 13,989/20 allowed the use of telemedicine only for clinical consultations for health care, research, teaching, prevention, or health promotion.

That is, the CFM understood that teleconsultations could not be performed in occupational examinations, which would require the examination and direct contact with the worker, under the argument that occupational examinations are regulated by Regulatory Norm 7 (NR7) of the Ministry of Labor.

It is worth pointing out that we did not analyze the issue from the point of view of the Federal Board of Medicine (CFM) and, therefore, we did not discuss the possibility of applying sanctions to physicians who perform acts that are not in accordance with the understanding of CFM Opinion 08/20. In fact, our analysis is purely from the standpoint of the Labor Judiciary.

Thus, although the norms and opinions of the medical boards have relevance when considered by the Labor Judiciary to assist in the interpretation of the norms that govern occupational medicine, the fact is that the federal legislation had not restricted the use of telemedicine in occupational examinations.

But, even without an express prohibition in the labor legislation, there was a risk of questioning of the validity of occupational health certificates (ASOs), because, although the norms and the opinions of the CFM or CRM have no binding effect in the Judiciary, they could be used as a decision-making parameter.

In addition, Law 13,989/20 authorized the use of telemedicine for the duration of the pandemic. Therefore, if there was no law/regulation that allowed the use of telemedicine after the pandemic, telemedicine examinations would no longer have a legal basis.

Law 14,510/22 does not expressly provide for the possibility of conducting occupational medical examinations via telemedicine. It does, however, establish guidelines that bring greater legal security to the performance of these exams via the use of telehealth.

The norm allows remote care both in the public network and in private hospitals and clinics, as long as the physician and the patient agree to the method. In the event of refusal, the patient must be guaranteed face-to-face care. Law 14,510/22 also guarantees physicians broad autonomy to decide whether or not to use telehealth.

By conditioning exams using the telehealth method on the physician's and patient's agreement, Law 14,510/22 brought more legal security to companies to use this exam method. However, since there are no precedents from the Labor Courts on the subject, there is still a risk of questioning the validity of ASOs prepared via telemedicine.

Thus, even with the enactment of Law 14,510/22, companies are still not fully protected and sure that the validity of ASOs prepared by means of telemedicine examinations will be recognized.

The new standard, however, in our opinion, brings in great arguments for validation to happen, if the physician and the patient agree to a remote method for occupational medical examinations.

^[1] According to Law 14,510/22, telehealth is a method of providing health services at a distance, through the use of information and communication technologies, which involves, among others, the secure transmission of data and health information, by means of text, sound, images, or other appropriate forms.

Category: Labor and employment

The deadline for companies to adapt their Internal Committees for Accident Prevention (CIPA) to the terms of MTP Ordinance 4,219/22 and Law 14,457/22 ends on March 20th and 21st of this year, respectively, but few companies are already prepared.

Law 14,457/2022, known for instituting the Emprega + Mulheres Program [“Employment + Women Program”], implemented various measures to support parenthood. The goal was to reduce the imbalance in labor relations between men and women, seeking gender parity.

Among the various provisions, Law 14,457/2022 instituted measures to prevent and combat sexual harassment and other forms of violence in the workplace, and assigned responsibility for these measures to the CIPA.

In the same vein, Ordinance 4,219/22 detailed some new CIPA obligations established by Law 14,457/22 and changed the nomenclature to Internal Committee for the Prevention of Accidents and Harassment ("CIPA+A").

In addition to other measures it deems necessary, the CIPA+A shall:

1. Include in the company's internal rules (and make them widely known) rules of conduct regarding sexual harassment and other forms of violence.
2. Establish the procedures for receiving and following up on complaints of sexual harassment and other forms of violence and, when applicable, apply administrative sanctions to those directly and indirectly responsible, ensuring the anonymity of the person making the complaint.
3. Include in the CIPA's activities and practices topics related to the prevention and combatting of sexual harassment and other forms of violence.
4. Carry out, at least every 12 months, training, orientation, and awareness actions for employees of all hierarchical levels in the company on topics related to violence, harassment, equality, and diversity in the workplace.

Main questions regarding CIPA+A

Due to the legal changes, we have discussed with many of our clients what the main impacts for companies are and, especially, what the role of the CIPA+A is. The answers to the main questions are presented below.

Aren't the new CIPA+A duties the responsibility of a company’s Compliance department? How can the new role of the CIPA+A interfere in a company’s Compliance?

No. The Compliance department is responsible for creating and implementing a company's ethical guidelines, ensuring compliance with legislation and internal rules. These guidelines involve various topics, such as fighting corruption and money laundering, conflicts of interests, data protection, and moral and sexual harassment, among others.

To this end, codes of conduct, internal policies, complaint channels, and internal procedures for investigation are created. All these procedures are created with the participation of other departments of the company, such as Human Resources, Legal, and the Executive Board. This is because there are legal, people management, and top management engagement issues involved in the entire compliance process.

The new duties of the CIPA+A are a part of a company's compliance program, since the legislation defined that the body must only establish procedures for receiving and following up on complaints, investigating facts, and applying sanctions involving sexual and moral harassment.

There is no provision for the CIPA+A to participate in the internal investigation involving reports of sexual harassment or violence at work.

In this manner, there will be no replacement or segregation of compliance activities in favor of the CIPA+A. The two groups must work together to ensure the efficiency of the entire program to prevent and combat sexual harassment.

Should the CIPA+A participate in investigations involving allegations of moral/sexual harassment?

No, unless the procedures established by the CIPA+A provide for its participation.

As determined by the legislation, the CIPA+A is only responsible for establishing the procedures for receiving and following up on complaints, investigating facts, and applying sanctions, and the CIPA+A does not have the right to participate in the investigation process.

We believe that if the intention of the legislation was that the CIPA+A participate effectively in the investigation, there would be an express provision to that effect.

Thus, the role of the CIPA+A is not to participate in investigations, but to assume a strategic role in combating harassment. It is important that there be synergy between the compliance area and the CIPA+A so that, anonymously and without details of the investigation or outcome, the CIPA+A can receive information about the existence of reports of sexual harassment or violence at work. This will make it possible to structure prevention measures and training, orientation, and awareness actions for employees in an efficient manner.

Must the results of investigation procedures on sexual harassment and violence at work be shared with the CIPA+A?

No, except if the procedures established by the CIPA+A itself for receiving, investigating, and applying sanctions have such a provision.

The legislation stipulates that the CIPA+A must include in its activities and practices topics related to the prevention and combat of sexual harassment and other forms of violence, in addition to carrying out actions to train, orient, and spread awareness among employees.

The legislation also expressly guarantees the anonymity of the whistleblower. The exposure of the aggressor or the victim can constitute moral damage, which is why information relating to the investigation, such as the name of the victim, the aggressor, the narrative of the facts, among others, must be kept confidential and shared with people necessary for the investigation only if indispensable.

The sharing of comprehensive information, such as mapping the number of confirmed cases of sexual harassment or violence at work, unconfirmed cases, the number of reports on the subject or by department, for example, helps the CIPA to fulfill its role more efficiently.

This information will be useful in structuring orientation measures, such as lectures and training, which are the CIPA+A's obligations. It helps clarify concepts, explaining to employees which behaviors constitute sexual harassment, how to identify cases of harassment of co-workers, what the procedures are for reporting it, for example, helping strategically in the performance of the CIPA+A's activities.

Can the CIPA+A interfere in the employer's directive/disciplinary power, defining the procedures for receiving and following up on complaints, as well as the administrative sanctions that must be adopted by the companies?

In the legislation on the subject, there is no provision that gives the CIPA+A the power to directly punish employees involved in cases of harassment or violence in the workplace.

It should also not be forgotten that the CIPA+A is composed of an equal number of company and employee representatives, which gives the employer participation, through its representatives, in deciding on the procedures that will be established to receive and follow up on complaints, in addition to the procedures for applying administrative sanctions

In addition, for companies that already adopt a procedure for receiving, investigating, and applying disciplinary action in cases of harassment, the CIPA+A may decide to keep the format already adopted by the company if it believes it is an efficient process.

It is important to remember that Regulatory Norm No. 5 (NR-5) assigns to the CIPA the responsibility of following up on the process of risk identification and assessment, drafting and participating in the implementation of the work plan with preventive action in safety and health at work, in addition to following up the analysis of accidents and occupational diseases, proposing improvements to resolve the problems identified.

In short, the CIPA's role has always been focused on preventing the risks of diseases and accidents that can affect employees, as well as on implementing measures to mitigate these risks.

Moral or sexual harassment, in and of itself, does not constitute an occupational illness or accident. However, if the employee develops any psychological or physical illness as a result of the harassment he has suffered, this illness will be considered an occupational disease.

Thus, sexual and moral harassment, as well as other forms of violence at work, can be framed as potential risks to the employee's health arising from the work environment and, therefore, must be fought by the CIPA.

The changes to the CIPA+A’s duties are aligned with the ESG principles ( Environmental, Social and Governance), which, in its social pillar, contains aspects about fighting moral and sexual harassment in the workplace.

After all, what will change in the CIPA+A’s activities?

The CIPA+A should play a strategic and important role in preventing and combating sexual harassment and violence in the workplace.

To this end, it must establish procedures for receiving complaints, investigating the facts, and applying administrative sanctions. In parallel, it will be necessary to carry out actions to train, orient, and spread awareness among employees and include in their activities topics about preventing and fighting sexual harassment and other forms of violence.

Although the CIPA+A does not put into operation or participate in the procedures regarding the investigation, it must adopt measures to prevent sexual harassment and other types of violence, such as periodic training and lectures. For this, the mapping of statistical data collected by the compliance department should be used based on information received by the whistleblowing channel.