Publications

: Category: Infrastructure and energy

The joint board of the National Civil Aviation Agency (Anac) approved sending for public consultation a draft resolution with new rules on airport coordination and allocation and monitoring of the use of airport infrastructure. The main reason for the proposal was the halting of the operations of Oceanair Linhas Aéreas S.A. in 2019, when Anac and the Administrative Council for the Defense of Competition (Cade) identified a possible increase in concentration in some airports, a fact that could cause impacts on the Brazilian air market.

Following a temporary redistribution of Oceanair's slots (airport infrastructure allocated to the air operator to perform a landing and takeoff operation at specific date and time), Anac identified the need to revise the existing regulation (Anac Resolution 338/21) to better address operational issues, minimize competitive impacts, and increase efficiency in the use of airport infrastructure.

One of Anac's greatest concerns is the criteria for slot distribution at airports with saturated infrastructure and the potential impediment to access by new operators. In revising Resolution 338/21, the agency found that the allocation criteria are not sufficient to promote market deconcentration and allow the operation of new airlines, making competition unviable and reducing the possible benefits for users.

To remedy the problem, the regulatory agency proposes to create a category of airport called "coordinated saturated airport - level 4", that which "has a level of airport capacity saturation that compromises any of the critical components (runway, tarmac, or terminal), as well as conditions that result in barriers to entry, with potential damage to the contestability of the market and effective competition", according to the wording of the draft of the new resolution.

By establishing new criteria, Anac intends to mitigate the problem of lack of infrastructure and seeks to offer better services to society. The technical note that supports the draft resolution indicates a series of technical arguments and international principles that help support the idea of a new regulation. The structuring principles of the new standard are as follows:

Efficiency - optimizing the use of available airport infrastructure;
Contestability of the market - establishing a regulation that no longer represents a barrier to new entrants and that allows for increased competition;
Regulatory stability - alignment of Brazilian norms with international standards;
Operational/administrative cost improvement - creation of methods to decrease the operational costs of airlines and Anac's administrative costs related to slot distribution and redistribution processes.

Another important point in the draft resolution, which may bring about significant changes for the dynamics of the Brazilian air market, is the regulation of slot transfers and exchanges, currently prohibited by Resolution 338/21. By removing the limit for the assignment and exchange of slots, Anac intends to enable the operation of companies that did not obtain slots due to lack of availability. By allowing the assignment or exchange of slots, Anac intends to increase access to the market and reduce the occurrence of corporate transactions conducted for the sole purpose of acquiring the right to use the slot. The slots still do not constitute assets of the air transport company and represent exclusively the right to use the airport infrastructure on a temporary basis. The maintenance of this right is linked to compliance with the criteria established in the resolution.

The exchange or assignment of slots will need to be approved by Anac, which will evaluate the characteristics of the operation of each of the parties involved and the airport’s capacity. An airline that gives up slots will be prohibited from receiving them from the slot pool for three equivalent seasons, except in cases where there are no other interested parties. In addition, only companies that have had a recognized slot history for three consecutive equivalent seasons will be able to assign slots. In cases involving saturated airports (level 4), only companies with a percentage equal to or lower than the percentage defined in a specific declaration submitted by the airport operator when preparing the coordinated airport declaration may receive slots.

If approved, the new resolution will cause significant changes in the planning of air transport companies. The text of the resolution is still subject to change and can be accessed on Anac's official website. Contributions to the draft may be made by any citizen or company until December 9, 2021, through the appropriate electronic form, also available on the official website of Anac.

: Category: Labor and employment

Following up on our series on the Infralegal Labor Regulatory Framework, we will discuss in this article its impacts on the Certificate of Approval of Personal Protective Equipment (PPE), in accordance with the provisions of Art. 167 of the Consolidation of Labor Laws.

According to the Regulatory Standard No. 6, Personal Protective Equipment shall be considered as any device or product, for individual use used by the worker, intended to protect risks that may threaten safety and health at work.

Companies are legally obliged to provide employees free of charge with the risk-appropriate PPE, in perfect condition and operation, in the following circumstances:

where general measures do not offer complete protection against the risks of accidents at work or occupational and occupational diseases;
While collective protection measures are being implemented; and
To respond to emergencies.

Article 167 of the CLT^[1] determines that the PPE can only be put on sale or used with the indication of the Certificate of Approval of the Ministry of Labor. By changing the device, the Decree 10,854/21 determines that, for the commercialization of PPE, the certificate must be requested exclusively by the manufacturer or importer and issued through a simplified electronic system by the Labor Secretariat of the Ministry of Labor and Social Security.

Through the Ordinance 672/21, the Minister of Labor and Social Security disciplined the necessary criteria for the issuance, renewal and alteration of the Certificate of Approval by the manufacturer or importer, and the technical requirements stipulated in Annexes I, II and III of the ordinance must be observed.

The standard expanded the responsibility of the manufacturer and importer, who responds technically, civilly and criminally to THE EPIs. In no event will this responsibility be transferred to the Ministry of Labor and Social Security, even if the Approval Office has been duly issued by the agency.

Although the company that acquires the effective PPE, as attested by the Certificate of Approval, has some legal certainty regarding the product, in case of possible ineffectiveness or irregularity of the PPE, it will be held accountable to the Labor Court for the consequences suffered by the employee, since the standard is expressed by removing the responsibility of the issuing body of the Certificate of Approval. Thus, the mere issuance of the certificate does not guarantee the full effectiveness and validity of the PPE. However, the liability of the employer acquiring the PPE to the Labor Court does not rule out any civil action of return in the face of the manufacturer or importer.

If the manufacturer or importer submits false declarations or documents for the issue of the certificate, it shall be subject to:

imprisonment of two to six years and fine in case of falsification or alteration of public document;
imprisonment from one to five years and fine in case of falsification or alteration of a private document; or
imprisonment from one to five years and fine (if the document is public) or imprisonment from one to three years and fine, from five hundred thousand réis to five contos de réis (if the document is private), in case of omission or insertion of false or different statement that should be written, in order to prejudice right, create an obligation or change the truth about a legally relevant fact. Currently the fine is fixed in the sentence and calculated in fine days according to the economic situation of the defendant. The amount is at least ten to a maximum of 360 days-fine, and may not be less than one thirty of the monthly minimum wage in force at the time of the fact, nor more than five times that salary. Thus, considering the minimum wage of R$ 1,045.00, the fine ranges from R$ 34.83 to R$ 5,225.00.

The ordinance expressly determined that the analysis of the request for issuance of the certificate be made by the Labor Secretariat of the Ministry of Labor and Social Security, and no longer by Inmetro, through the General Coordination of Safety and Health at Work of the Subsecretariat of Labor Inspection of the Labor Secretariat. To this end, the test report issued by a national laboratory accredited by Inmetro to prove the effectiveness of ppe protection will be verified.

A test report has been allowed abroad, provided that the certifying body of the issuing country is accredited by a multilateral recognition agreement signatory body and that the test report is issued by a foreign laboratory also accredited by a multilateral recognition agreement signatory body provided for in the standard.

Thus, Brazilian companies are allowed to import any PPE, but the analysis and verification of the equipment will not be done by the Ministry of Labor and Social Security, which may eventually affect the quality and effectiveness of the product and, in a way, reduce the safety of the acquiring company.

The validity period of the PPE Certificate of Approval shall be five years from its date of issue if the test report has been issued less than one year ago, or from the date of the test report, if it is longer than one year.

The newly published ordinance also integrated the regulation of the Respiratory Protection Program – Recommendations, Selection and Use of Respirators to the measures to be observed for the use of respiratory protection equipment.

The standard unified and organized procedures, programs and conditions of safety and health at work, in addition to the infralegal standards for issuing the CERTIFICATE OF APPROVAL OF PPE, which should be made through a single system totally electronic, which makes the process and the supervision of the validity of the PPE more accessible and agile.

Once the criteria stipulated and observed the technical requirements provided for in Ordinance 672/2021, with an assessment of the impacts according to the needs of each company, will be possible to guarantee greater legal certainty and avoid penalties for the provision of PPE not validated by the labor authorities.

All changes in the obligations related to the issuance of the CERTIFICATE OF APPROVAL OF PPE become effective on December 11 of this year, 30 days after the publication of Decree 10.854/21.

In the coming weeks, we will continue to publish articles to explore, in a simple and practical way, the main changes brought by the decree, ordinances and normative instructions, clarifying the main impacts for companies.

Click here to read the other articles in the series.

^[1] Art. 167, CLT – Protective equipment may only be put up for sale or used with the indication of the Certificate of Approval of the Ministry of Labor.

: Category: Litigation

Mediation and conciliation are alternative means of resolving conflicts in relation to the traditional state or arbitral jurisdiction. Both cases involve a third party who will act, in case of mediation, to facilitate dialogue and composition between the parties and, in case of conciliation, more actively, suggesting alternatives and mediating conversations. In both cases, the processes depend on the agreement of the parties. In addition to the legal requirement of voluntary submission, the success of these mechanisms certainly depends on the willingness and interest of the parties to submit their dispute to them.

The 2015 Code of Civil Procedure (CPC) has expressly included the institutes in the law to encourage their use aiming at better social pacification and relieving state justice - so burdened by the volume of lawsuits. In this sense, §§2° and 3° of Art. 165 of the CPC generically defined that the conciliator acts in cases in which there is no previous connection between the parties, assisting them in understanding the issues and interests in dispute. The mediator acts in cases in which there is a previous bond between the parties, seeking to facilitate the communication so that consensual solutions can be identified.

Also in 2015, Law 13.140 specifically addressed the mediation and its role in the resolution of disputes, providing as general principles of its practice the impartiality of the mediator (which would prevent the judicial trustee to act as mediator), equal treatment of the parties, orality and informality, the autonomy of the parties' will, confidentiality and good faith.

The use of mediation and conciliation in recovery proceedings faced some resistance at first, considering the volume of legal provisions involving the process that could not be modified or opted out by the parties. On the other hand, it is undeniable that the recovery procedure is a major negotiation, with a distribution of burden between creditors and debtors, and that it can benefit from a “multi-door” conflict resolution system.

Before the amendment of Law 11.101/05 promoted by Law 14.112/20, the matter had already arisen in some instances. Statement No. 45 of the First Journey of Prevention and Out-of-Court Settlement of Disputes of the Council of the Federal Justice (CJF) (I Jornada de Prevenção e Solução Extrajudicial de Litígios do Conselho da Justiça Federal), 2016, established that "mediation and conciliation are compatible with the judicial and extrajudicial recovery proceedings and bankruptcy of the businessman and the business company, as well as in cases of overindebtedness, provided that legal restrictions are observed".

In 2019, Recommendation 58/19 of the National Council of Justice (CNJ) proposed to magistrates "the use of mediation, in order to assist in the resolution of any and all conflicts between the businessman/company, in recovery or bankruptcy, and its creditors, suppliers, partners, shareholders and third parties interested in the process". More specifically, the recommendation mentions the use of mediation in the following cases:

credit check incidents;
negotiation of a judicial recovery plan;
definition of the need of substantial consolidation;
resolution of disputes between the debtor's partners/shareholders, between concessionaires/permitholders of public services and regulatory bodies; and
situations involving creditors not subject to recovery.

In 2020, the Court of Justice of São Paulo began to offer two types of business mediation to mitigate the judicial crisis and the effects of the covid-19 pandemic: one for businessmen and business societies in relation to conflicts arising from the pandemic, under the CG Provision 11/20, and another for disputes related to judicial recovery and bankruptcies, in accordance with CG Provision 19/20.

Subsequently, the broad reform of the Recovery and Bankruptcy Law of 2020 expressly set forth the possibility of using conciliation and mediation in such proceedings and included arts. 20-A to 20-D in Law 11.101/05. The change intended to provide greater speed to recovery and bankruptcy proceedings and to unburden the judicial system, which, since 2004, according to data from the CNJ, receives more processes than it can finalize, generating a high congestion rate.^[1]

In short, the law has expressly set forth the possibility of using mediation and conciliation in all degrees of jurisdiction. They can be carried out in advance or in an incidental character to the recovery processes, not suspending the deadlines. Therefore, the recovery and bankruptcy law, as amended, reinforced the provision of Article 3, §3, of the CPC and brought greater clarity regarding the use of conciliation and mediation in the judicial and extrajudicial recovery and bankruptcy proceedings, including for related professionals, such as judicial administrators, companies in crisis, creditors and judges.

The law also indicated a list with examples of matters in which conciliation and mediation could be used, including, in addition to part of the hypotheses provided by the CNJ, the existence of credits excluded from the recovery proceeding (extraconcursais) against companies in recovery during the state of public calamity to ensure the continuity of the rendering of essential services. It is important to highlight that the legislator did not expressly indicate the collective bargaining of the judicial recovery plan as one of the hypotheses.

In the event of negotiation between the company in crisis and its creditors in advance, if the company meets the requirements to request recovery, it may apply for precautionary urgency by suspending executions for a period of 60 days to enable the attempt to resolve the conflict in proceedings before the Cejusc (Judicial Center for Conflict Resolution and Citizenship - Centro Judiciário de Solução de Conflitos e Cidadania) of the competent court or specialized chamber. If a request for judicial or extrajudicial recovery is made, the period of 60 days will be deducted from the legal stay period.

In addition, if a request for judicial or extrajudicial recovery is distributed within 360 days as of the agreement signed in the conciliation or pre-procedural mediation, the creditor will be returned to its prior position with the rights and guarantees under the conditions originally contracted, minus the paid amounts.

The law prevented the use of conciliation and mediation in relation to disputes about the nature and classification of the credits and voting criteria at creditors’ general meetings. The prohibition aims to protect the interests of other creditors, avoiding greater liens on debtor's assets.

Cases in which conciliation and mediation procedures are successful, the settlement agreement shall be approved by the competent judge.

Practical cases show that the use of mediation and conciliation in recovery proceedings – even before the amendment of the law – can be quite productive. An example of this was the first use in the case of Oi's judicial recovery,^[2] that enabled the conclusion of more than 55,000 agreements involving more than R$ 3 billion. Another paradigmatic case was the judicial recovery of Saraiva.^[3] Established in a preventive form in two phases, before the presentation of the judicial recovery plan and before the creditors’ general meeting, it helped the better adjustment of the plan to the interests of creditors and the company.

It is also worth mentioning that Art. 20-D allowed mediation or conciliation sessions to be held by virtual means.

Even with the recommendation of the CNJ and the amendment of the law, conciliation and mediation shall respect the limits of the rules applicable to recovery proceedings to secure, for example, that the principle of pars conditio creditorum pars is not violated. Provided that these limits are observed, mediation and conciliation can certainly help recovery proceedings to be more efficient, modern and effective, as already demonstrated in several concrete cases.

^[1] Data from the Justice reports in Numbers of the CNJ. Available at https://paineis.cnj.jus.br/QvAJAXZfc/opendoc.htm?document=qvw_l%2FPainelCNJ.qvw&host=QVS%40neodimio03&anonymous=true&sheet=shResumoDespFT, access on October 2, 2021.

^[2] TJRJ, Process 0203711-65.2016.8.19.0001, Dr. Fernando Cesar Ferreira Viana, 7th Business Court.

^[3] TJSP, Case 1119642-14.2018.8.26.0100, Dr. Paulo Furtado de Oliveira Filho, 2nd Bankruptcy and Judicial Recoveries Court of the District of The Capital.

: Category: Infrastructure and energy

Fabio Falkenburger, Marina Estrella Barros, Pedro Amim, Vitor Guilherme da Silva Barbosa, Vittoria Psillakis Mickenhagen and Izadora Figueiroa Mastrangelli

Amidst the initiatives to regulate the activities of operation and administration of shared aircraft ownership programs, which began in 2020 with the inclusion of rules in Subpart K of Brazilian Civil Aviation Regulation 91 (RBAC 91), the National Civil Aviation Agency (Anac) issued Supplemental Instruction 91-013 (IS 91/13) in September. In general terms, IS 91/13 regulates the process for obtaining administrative specifications (EA) for legal entities wishing to provide shared property program administration services or for those that provide the services and need to adapt to the new rules on the activity.

EAs are documents issued by Anac that define, list, and establish facilities, management personnel, fleet, area of operation, specific operations authorizations and/or limitations, aircraft maintenance information, and exemptions or deviations related to a shared aircraft ownership program administrator. The characteristics of the administrator, therefore, are linked to the information contained in its EAs.

IS 91/13 establishes the process for obtaining or changing an EA, with estimated deadlines for each procedural phase, listing all the necessary documentation in each one of them.

Information has been included to assist the interested party in preparing the necessary documentation and infrastructure for presentation during the process. This is an important step towards the implementation of shared ownership programs in Brazil, aiming to create a regulated modality for provision of services, increase competitiveness in the airline industry, and, at the same time, ensure safety of operations for users/owners.

The process of issuing EAs has five stages:

Phase 1 - Prior request;
Phase 2 - Formal request;
Phase 3 - Evaluation of documents;
Phase 4 - Demonstrations and inspections; and
Phase 5 - Issuance of EAs

This process has an estimated minimum duration of 120 days, depending on the agility of the submission of documents, accuracy of information, and the speed of responses from the interested party to any requests, inquiries, and non-conformities pointed out by Anac.

The process must be carried out through an electronic request via Anac's Electronic Information System (SEI). All interactions and communications between Anac and the applicant shall be performed by legal representatives appointed by the applicant, which may be the responsible manager, the persons appointed for personnel administration positions, or legally appointed attorneys.

What will be done in each phase

In the preliminary application phase, the applicant may request clarification related to the required documents and applicable procedures through an electronic platform. After the first contact via the Fala BR platform and if further clarifications are needed, the responsible manager or legal representative should draft and send a letter, via SEI, requesting a prior orientation meeting.

The purpose of the preliminary orientation meeting is to provide the applicant with information about the process, documents needed to form the formal application package, practical issues, procedures for demonstrating compliance with requirements, instructions for preparing the manuals, programs and the structure that must be presented during the process. The request for clarification letter should indicate the manager responsible for the company and other members of management, in accordance with the requirements under RBAC 91.

During the formal application phase, the applicant must submit a new letter requesting the formal opening of the case, containing information such as:

corporate name of the organization;
CNPJ;
address of the operational headquarters;
listing of the aircraft models to be used in the program;
crew list;
sample shared ownership program administration agreement;
fleet management document containing up-to-date aircraft information;
information on operations to be conducted on water;
operational security document system;
declarations of conformity;
application for exemption from compliance with rules;
contact information; and
any other documents/manuals requested by Anac during the process.

In conjunction with the cover letter, other documents should also be forwarded such as:

template(s) of program administration agreement;
fleet management document containing updated information on the specific aircraft (nationality and registration marks) to be used for the program;
sample list of quotaholders;
registration of the required administration personnel;
information on area of operation;
requests for authorization for specific operations;
requests for exemption from compliance with a rule; and
other documents or manuals, at the discretion of the requesting organization or requested by the technical team, also throughout the process.

In the third phase (evaluation of documents), Anac will evaluate all required manuals, programs, and documents and notify the applicant by letter, if any document is considered incomplete, deficient, or not in compliance with the applicable rules. The deadline for Anac to approve the documents will depend on the satisfactory fulfillment of the deficiencies and non-conformities pointed out during the assessment phase. Upon completion of the assessments and approval of the manuals, programs, and other documents, a final compliance statement will be produced to ensure that each regulatory requirement applicable to the intended operation has been adequately addressed.

In phase 4 (demonstrations and inspections), the organization must file a letter confirming availability for demonstrations and inspections. Next, Anac will evaluate the effectiveness of policies, methods, procedures, and instructions described in the manuals and indicate any corrective actions necessary. As a result of the inspections carried out, in the event that deficiencies and non-conformities are found, they will be communicated to the applicant organization by means of an official letter. The corrections must be submitted by letter or official letter of reply within the period established by Anac.

In the last phase of the process, Anac will approve and issue the EAs of the new shared aircraft ownership program administrator, listing all the permits, approvals, limitations, and exemptions granted. The process will be formally closed by means of the publication of an ordinance in the Official Gazette of the Federal Government.

The regulation of shared ownership of aircraft fosters competition and facilitates access to private flights, in addition to providing greater safety and predictability for the user. The deadline to start issuing EAs is March of 2022, and the process must be completed by October 31, 2022.

: Category: Labor and employment

Following up on our series on the Infralegal Labor Regulatory Framework, we will discuss in this article the impacts of the guidelines for the elaboration and revision of regulatory standards (NRs) for safety and health at work.

Established by Decree 10.854/21, the guidelines intend to guide the elaboration and revision of regulatory standards, giving greater uniformity and harmony to their texts and their structure, in addition to seeking to simplify, debureaucratize and allow the constant updating of their contents.

In general, the guidelines seek to align and balance infralegal labor standards for work safety and health with the needs and particularities of labor relations and economic activities.

The decree defines seven guidelines for the elaboration and revision of these standards:

reduction of risks inherent to work, prevention of accidents at work and occupational diseases and promotion of occupational safety and health;
dignity of the human person, social value of work, valorization of human work, free exercise of economic activity and pursuit of full employment;
technical or scientific basis, timeliness of standards with the current stage of technological development and compatibility of Brazilian and international regulatory frameworks;
harmonization, consistency, practicality, coherence and uniformity of standards;
transparency, reasonableness and proportionality in the exercise of regulatory competence;
simplification and debureaucratisation of the content of regulatory standards; and
the State's subsidiary and exceptional intervention on the exercise of economic activities, including differentiated treatment of low-risk economic activity to health and safety in the workplace.

As already highlighted in our series, the desire for simpler and more unbureaucratic labor legislation has been manifested by both employees and employers and, in addition to serving as one of the guidelines for the drafting and review of regulatory standards for safety and health at work, has become one of the major pillars of the new Regulatory Framework Infralegal Labor.

The changes intended with the definition of the guidelines were consolidated with the edition and publication of Ordinance 672/21 of the Ministry of Labor and Social Security (MTP), which defines all procedures and steps to be followed and respected for the elaboration and review of regulatory standards of safety and health at work.

One of the most relevant aspects of the procedures for the elaboration and revision of these standards is the participation of members of the organizations most representative of workers and employers, as well as representatives of the federal executive branch, through the Permanent Joint Tripartite Commission (CTPP), established by Decree 9,944/19.

The CTPP, formed by members of the federal government, representatives appointed by the business confederations and the union centers, in the context of the preparation and review of NRs, has as one of its duties the elaboration of studies and participation in the process of elaboration and review of regulatory standards.

Ordinance 672/21 also provides for the mandatory updating of regulatory stock, at least every 5 years, which will ensure the periodic examination of the standards, again in compliance with the guideline that indicates the need to update them.

Before the publication of the Regulatory Framework, in the absence of specific and predefined procedures that would enable the revision of regulatory standards in a systematic and transparent manner, the infralegal labor legislation was limited and, consequently, lame in relation to the legal system as a whole, creating contradictions and legal uncertainty.

In this scenario, many of the legislative changes brought by Law 13.467/17, also known as Labor Reform, ended up not being accepted or understood in the texts of regulatory standards.

An example is the lack of harmony between the new rules of the telework regime and the evaluation of the number of employees for the dimensioning of the Internal Commission for Accident Prevention (CIPA) and specialized services in Safety Engineering and Occupational Medicine (SESMT).

This is because the lack of updating of NR-4 and NR-5 has left gaps in the obligations of companies that rely on teleworking professionals. Although duly registered as employees, these workers do not work in the company's premises, leaving doubt as to whether or not to compute them for the formation of CIPA and SESMT contingents.

In the same sense, we discuss the possibility of outsourcing the physician that composes the SESMT. NR-4 expressly provides that the physician should be employed, which is not reflected in the Labor Reform, which brought the possibility of outsourcing the activities end and a half.

Because it is still very recent and considering the procedure for the preparation and revision of NRs and their annexes, no appropriate changes have yet been made to regulatory standards. However, along with the definition of the structure and procedures for review and elaboration, Ordinance 672/21 also brought news in relation to toxicological examination and embargo procedures and interdiction of companies and machines.

As for toxicological tests, to which professional drivers are subject, according to Art. 168 of the CLT, there was a change, mainly, in the technical aspects, to follow the provisions of Conatran Resolution 691/17. Ordinances 116/15 of the Ministry of Labor and Social Security and 1,343/19 of the Special Secretariat of Social Security and Labor of the Ministry of Economy were consolidated and revoked through the ordinance.

In relation to the procedures of embargoes and interdiction of companies and machines, the previous wording was changed, mainly to update the procedures related to embargoes and interdictions for the electronic environment. The measure generally expedites the procedure of administrative proceedings, consolidating and updating the text of Ordinance 1,069/19, also repealed by Ordinance 672/2021.

It is important to highlight that the changes in the procedures related to embargoes and interdictions relate to the use of electronic tools both by the labor auditors, in the drafting and transmission of embargoes and interdictions, as well as by employers, through electronic petitioning, which will give greater speed to the administrative procedure.

Although they bring very positive innovations to the labor normative set, the procedures for elaboration and updating can still be quite bureaucratic, mainly because the topics addressed are eminently technical and usually require more careful analysis and deeper revisions in relation to their foundations.

The objective of the guidelines, however, is, in fact, to simplify and update labor standards of safety and health, facilitating their understanding and compliance. In this respect, the novelties brought by Decree 10.854/21 and Ordinance 672/21 are indispensable and promise to bring various benefits to labor relations.

The provisions of Decree 10,854/21, published on November 11, enter into force 30 days after its publication. Ordinance 672/2021, published on November 11, will be in force from December 10.

In the coming weeks, we will continue to publish articles with the aim of exploring, in a simple and practical way, the main changes brought by decrees, ordinances and normative instructions, in addition to clarifying the main impacts for companies.

Click here to read the other articles in the series.

: Category: Labor and employment

Starting our series on the Infralegal Labor Regulatory Framework, we will discuss in this article its impacts on the Permanent Program for Consolidation, Simplification and Debureaucratization of Infralegal Labor Standards.

Established by Decree No. 10.854/21, this program was created to review, compile and consolidate infralegal labor standards (such as decrees, ordinances, regulatory standards, etc.). With it, the federal government intends to promote greater alignment of labor standards with government public policies – especially those of fostering job creation and economic recovery – through the issue of normative acts aimed at this end and the revision of existing ones.

The creation of the decree also aims to meet an old desire of those who benefit from labor legislation, whether employees or employers: to decomplicate and debureaucratize the set of rules currently in force, to leave them in agreement with the other rules that have been significantly changed since the Labor Reform of 2017.

Although it is still too early to have definitive conclusions as to its relevance and effectiveness (even by the expressive volume of revised acts), at first glance, the measure promoted by the Ministry of Labor and Social Security is very welcome. Considering the wide range of infralegal norms that guide not only judicial and administrative decisions, but mainly business activities, the simplification intended by the Decree is an encouragement for those who have to dive into an endless sea of norms, often contradictory, in search of simple answers to daily labor questions.

The program will compile and organize the infralegal labor standards according to the following topics (without prejudice to others that may be included in due course by the federal government):

labor legislation, labor relations and public labor policies;
safety and health at work;
work inspection;
procedures of fines and appeals of labor administrative proceedings;
conventions and recommendations of the International Labour Organisation (ILO);
regulated professions; and
administrative rules.

Both periodic reviews on the themes– precisely so that the program does not lose its main purpose over time – and the edition of new standards are planned, which must meet the precepts of objectivity, clarity and simplicity that the program seeks to institute.

One of the biggest complaints regarding Brazilian labor law is that, even after the profound changes promoted by Law No. 13.467/17 (the Labor Reform), it still has contradictory points – in its infralegal norms and in the interpretation given to it in the administrative and judicial spheres – which end up leading insecurity to its application.

The revision and compilation of these rules, therefore, is seen with good eyes, since it aims to clear the principles that guide labor relations in Brazil through more objective concepts and easier to understand, even to make the rules more accessible and transparent to their recipients (workers, employers, unions and law operators). With the program, they will have at their disposal a platform on which they can participate more directly.

As for government public policies, the program seeks to improve the interaction of the Ministry of Labor and Social Security with its administered, through the integration of labor and social security policies that make the private sector more efficient and competitive, in addition to harmonizing labor and social security infralegal standards. Examples include the creation of the Electronic Labor Inspection Book (eLIT), which will replace the printed book, making communication between companies and work inspection more agile, and time-by-point marking, which tends to facilitate the daily life of the HR and Payroll sectors.

The Decree, however, does not shy away from criticism, mainly because of the vague way it addresses some points: it is undeniable that the Brazilian labor normative scenario is extremely fertile (so much so that the creation of the program is justified), but there is no mention of the scope and how the biennial reviews will be promoted (will a commission be created to do so? If so, how and by whom will it be composed?). Moreover, since there is no mechanism that binds the Ministry of Labor and Social Security to compliance with the standard, there is a risk that the entire revisional character of the program will fall apart if there is no commitment of the agency – which will depend, as the Decree itself stipulates, of the public policies that are on the agenda at the time.

Therefore, even if a continuous review and compilation of the infralegal acts on labour law is necessary, yet to keep it relevant and in accordance with the successive changes in the way of providing the work, the program lacks more incisive guidelines that ensure compliance by the public authorities, at the risk of falling into disuse and becoming another measure with good intentions, but which are not put into practice.

Click here to read the other articles in the series.

Publications

What will be done in each phase

Subcategories