Publications

Category: Labor and employment

Ordinance No. 1.809/21, of the Special Bureau of Social Security and Labor, which modifies the list of business activities authorized to operate permanently on Sundays and civil and religious holidays, enters into effect on March 1st. The new rule replaces Ordinance No. 19.809/2020, issued during the period of public calamity, and provides greater security for employers.

The previous rule had brought in as a novelty the inclusion, in the authorized list, of essential activities provided for in Law No. 13,979/20. With the end of the state of public calamity, considered the great motivator of the normative change, on December 31, 2020, the continuity of the authorization for such activities was discussed, causing uncertainty and legal insecurity in sectors of great relevance in the economy, such as civil construction, industry in general, and the capital markets and insurance.

Since the legislation imposes on the business activity authorization to work on Sundays and holidays, the uncertainty exposes employers to the penalties of the inspection agencies.

In addition to changing the wording of some activities and including others, Ordinance No. 1,809/21 deleted the section that included the essential activities provided for in Law No. 13,979/20, thus eliminating the aforementioned insecurity. On the other hand, part of those activities was incorporated into the authorized list on a definitive basis.

We present HERE a detailed table with these changes. Among them, the following included activities stand out:

• Transmission of electricity, excluding office services but including (a) the furnishing of supplies for the operation and maintenance of generating plants and power transmission and distribution systems and (b) the related engineering works;

• Construction activities;

• Call center services; and

• Capital markets and insurance.

With respect to industries, while the list of essential activities in Law No. 13,979/20 does not detail the sectors included, making it quite comprehensive, Ordinance No. 1,809/21 ended up detailing those authorized to operate on Sundays and civil and religious holidays.

Also noteworthy is the inclusion of the agro-industry and the retail trade in general, previously limited to only a few items and activities. However, despite this provision, insecurity persists with respect to commerce in general, since articles 6 and 6-A of Law 10,101/2000, which establish the need for compliance with municipal legislation and authorization for work on holidays in a collective bargaining agreement, have not been revoked.

The form of remuneration or compensation for work on Sundays and holidays, including any overtime, remains unchanged. Thus, the employer must grant a compensatory rest day, under penalty of double payment, without prejudice to remuneration for weekly rest. In the event that the compensatory rest is not granted, in addition to payment of the aforementioned remuneration, the company will be subject to the penalties of the competent inspection bodies.

Category: Real estate

When judging Special Appeal 1.861.062/SP, the Third Panel of the Superior Court of Appeals (STJ) established the understanding that absence of consent from all co-owners to give possession of property to third parties does not give rise to nullity of the lease agreement.

The decision pointed out that the defects that can lead to nullity of the contract are those provided for in articles 166 and 167 of the Civil Code, and that the legislation does not require the presence of all owners in the lease instrument.

In this case, there was a civil condominium on the property subject to the dispute initially formed by six owners, each a co-owner of a fraction of 1/6 of the property. The plaintiff, one of the co-owners, rented the property without the signature of the others and, subsequently, due to default of the tenant, sought termination of the lease, issuance of an eviction order, and collection of the amount referring to rents due and yet to mature. In an unusual manner, the appellants, in turn, although owners of 2/6 of the property and also creditors of the rent payments, defended the nullity of the contract, alleging that they had not agreed to the lease of the property and that the plaintiff had not demonstrated that he had the consent of the other co-owners to sign the contract in question.

The reporting judge Villas Bôas Cueva found that the theory of nullity could not be accepted, thus releasing the tenant from any obligation, especially due to the principle of prohibition of unjust enrichment, provided for in article 884 of the Civil Code, in view of the undisputed default in the record. In addition, he stressed that although the transfer to third parties of possession of a property held in a condominium requires consent of the absolute majority of the co-owners (and not unanimously), the absence of such consent does not give rise to nullity of the agreement or remove its legal effects.

Specifically in relation to the issue of the consent of the absolute majority of the condominium members as opposed to the unanimous consent, it is worth pointing out that, by express legal provision of article 1,324 of the Civil Code, in the absence of opposition from the others, the condominium member that manages the property is presumed to be the common representative and may formally enter into the lease agreement on behalf of the others. It is also worth pointing out that in order to appear as lessor of a property, the lessor needs to possess it and not necessarily be its owner.

Still on the protection of tenants' rights, article 169, subsection III, together with article 167, subsection I, No. 3, and subsection II, No. 16, of Law No. 6,015/1973 (the Public Records Law), makes it clear that, for purposes of registration of the term of duration provision and annotation of the tenant's preemptive right in the proper Real Estate Registry Office, it is sufficient that the name of one of the owners and the lessor coincide. This supports the understanding that it is not necessary for all co-owners to attend and sign the lease agreement as lessors.

However, it is common for real estate registry offices to impose requirements requesting the attendance of all owners in the lease agreement, despite the legal provision and case law on the subject. In order to avoid future questions, it is recommended that, when entering into a lease agreement of a property held in a civil condominium (co-ownership), at least a resolution of the absolute majority of the joint owners be presented, even if not all of them are parties to the lease agreement.

Even so, if the registrar opposes registration of the lease agreement entered into by only one of the co-owners, it is possible to challenge it by indicating the provision of express law and case law on the subject. Therefore, this lease agreement is existing, valid, effective among the parties, and subject to registration and recording in the real estate registry in order to protect the tenant's rights.

Category: Labor and employment

The Federal Supreme Court (STF) began on February 19 the virtual judgmnet of Extraordinary Appeal 999.435, which discusses topic of general repercussion 638 regarding the need for prior collective bargaining for mass layoffs of workers.

The judgment relates to the extraordinary appeal filed by Embraer, in a collective dispute, regarding the validity of the mass layoffs carried out by the company in 2009, as a consequence of the global economic crisis experienced at the time.

The Labor Courts held that collective layoffs are not possible without the participation of the labor union representing the workers. Case law imposed collective bargaining as a prerequisite for the validity of mass layoff processes.

The judgment was not adjourned, but the opinion of the reporting judge, Justice Marco Aurélio, was released. In a direction contrary to the understanding of the Labor Courts, the Justice proposes as a solution to the dispute no need for collective bargaining for the mass layoff of workers.

The Justice argues that the Federal Constitution is exhaustive in setting out the list of rights that must necessarily be addressed via collective bargaining. In his opinion, since there is no constitutional or legal prohibition on the matter and in accordance with the legal principles that govern labor relations and the dignity itself of the human person, it is not necessary to consider the inclusion of obstacles blocking the employer's unilateral power.

The issue has been discussed for more than 20 years with the STF, with a Direct Action for Unconstitutionality (ADI No. 1625) regaring Decree No. 2,100/96, which declared the end of the validity of Convention 158 of the International Labour Organization (ILO) in Brazilian territory.^[1] The judgment of this ADI, scheduled for the first half of the year, was excluded from the calendar by the Chief Judge of the STF, Justice Luiz Fux, on the same day the judgment of the Embraer case began.

This is a highly relevant topic, especially in the current scenario of economic crisis, with various companies announcing plant closures and even a total shutdown of activities.

There is still a long way to go before the judgment is completed, certainly with ample debates among the Justices of the Court, who should address the issues together to settle the position. In any case, the Justice's proposed opinion further exalts the idea of loosening of labor law rules as a solution for resumption of economic development, in addition to fostering the role of pacification of social conflicts by the Judiciary, issues that have also been the subject of concern on the part of the Legislative Branch, as were the changes proposed by the Labor Reform.

^[1] ILO Convention No. 158, among other measures, prohibits arbitrary or unjust dismissal.

Category: White-Collar Crime

The so-called Anticrime Package (Law No. 13,964/19) entered into force in 2020 brought  substantial changes in criminal law and criminal procedure, among them an alternative for negotiated criminal justice: the possibility of entering into a Non-Prosecution Agreement (ANPP) between the investigated party and the Public Prosecutor's Office.

Before the ANPP, at the end of the investigation (police inquiry or criminal investigative procedure conducted by the Public Prosecutor's Office), the prosecutor had two options: to request the closure of the investigation or to press charges. The innovation of the Anticrime Package gave the Public Prosecutor's Office a third option: to propose an ANPP. The agreement must be proposed only when there are sufficient elements of evidence to press charges.

According to the wording of the new article 28-A of the Code of Criminal Procedure (CPP), an ANPP may be proposed by the Public Prosecutor’s Office when:

• the accused confesses the crime;

• the crime was committed without violence or serious threat;

• the crime carries a minimum sentence of less than four years.

The ANPP cannot be offered in the following cases:

• if a plea bargain is available;

• if the investigated person is a repeat offender;

• if there is evidence that indicates habitual, repeated, or professional criminal conduct;

• the investigated person has signed an ANPP, plea bargain agreement, or conditional suspension of proceedings within five years prior to the crime;

• in crimes committed in the context of domestic or family violence or committed against a woman because of her condition as a female.

However, one year after the procedural innovation, there are still practical questions pending, especially regarding cases that were already in progress when the law entered into force. In an attempt to provide some guidance, the federal and state public prosecutor’s offices have published technical notes on the subject.

The Federal Public Prosecutor's Office (MPF) published practical instructions through the revision and expansion of Joint Guidance No. 03/18, among them:

• an ANPP is not a subjective right of the investigated person, and may be proposed according to the peculiarities of the actual case and when considered necessary and sufficient for the discouragement and prevention of the criminal offense;

• the investigated person may propose an ANPP and, if the proposal is refused, a request of review by a higher instance of the MPF may be filed;

• the MPF shall notify the investigated person to appear at the headquarters of the MPF if he is interested in an ANPP. The notice shall expressly include that the settlement presupposes a formal and detailed confession of the crime and that the person under investigation must appear accompanied by a lawyer;

• ANPPs may be entered into in ongoing criminal proceedings;

• an ANPP shall explicitly contain a time limit for compliance with the agreement.

If all the requirements are met and the legal impediments are absent, the settlement may be proposed and negotiated, culminating in the application of certain conditions for the accused (cumulatively or alternatively), such as

• reparation for the damage to the victim,

• voluntary relinquishment of assets and proceeds resulting from the crime,

• community service,

• payment of a fine and compliance with other conditions indicated by the Public Prosecutor's Office.

Regarding the conditions to be imposed by the MPF, Joint Guidance No. 03/18 established that the reparation of the damage may be partial, when applied in conjunction with other conditions, and provided concrete examples:

• prohibition for the investigated person to travel to the country from which the goods were unlawfully brought, in the case of smuggling (article 334-A of the Penal Code);

• removal of the investigated person from the board of directors or control of the company, in economic crimes (Law No. 8,137/90);

• prohibition for the investigated person to operate in the financial market for a certain period, in the case of crimes against the financial system (Law No. 7,492/86).

The Public Prosecutor's Office of the State of São Paulo (MPSP) published Technical Note No. 6 with a practical step-by-step guide for the execution of ANPPs virtually. Among the most relevant guidelines are:

• the accused may be reached via e-mail, WhatsApp, or voice call, for the offer of an ANPP and the negotiation meeting will be virtual, via videoconference;

• the ANPP will be face-to-face only if the accused cannot be contacted by virtual means;

• the MPSP may, at its discretion, also contact the victim to assess the damages suffered.

In Minas Gerais, the guidelines were published by the Court of Appeals of the State of Minas Gerais (TJMG) by Joint Ordinance 20/PR-TJMG/20. According to the TJMG, the judges will have sixty days to identify cases not yet sentenced and ongoing investigations that conform to the requirements of the new article 28-A of the CPP and whose evidentiary hearing has not yet been scheduled. After identification, the defense would be summon to response regarding its interest in reaching an ANPP.

In any case, once the negotiation is closed, the ANPP shall be signed by the representative of the Public Prosecutor's Office and by the investigated person and his defender. After signing, the agreement will go through judicial review for ratification in a hearing. The judge, then, must confirm the legality and voluntariness of the agreement after hearing the investigated person, and may refuse to approve the agreement if he believes that it does not meet the legal requirements, is the result of coercion, or that the conditions imposed are inadequate, insufficient, or abusive.

If the agreement is executed, it will not appear in the criminal record certificate of the accused and, after due compliance with the conditions, the judge will order the extinguishment of criminal liability^[1].

Corporate crimes, also known as white-collar crimes, are mostly eligible for ANPPs, since they have minimum sentences of less than four years (accounting for increases and decreases in sentence) and are committed without violence or serious threat.

Among the crimes related to day-to-day business activities, the environmental crimes set forth in Law No. 9,605/98 and tax crimes set forth in Law No. 8,137/90 stand out due to their volume.

For environmental crimes, in addition to the criminal settlement and the possibility of conditional suspension of the proceedings, an ANPP could be an excellent tool to speed up proceedings and make the criminal protection of the environment more efficient, reserving criminal sanctions for effectively serious cases, when there are no procedural alternatives available other than filing a complaint and initiating criminal proceedings.

With regard to tax crimes, ANPPs gain relevance because they provide the companies’ representatives with a negotiated alternative to avoid their involvement in a criminal proceeding. An ANPP may be an interesting alternative for so-called "formal crimes", i.e., those in which the criminal conduct is sufficient, regardless of the effective tax evasion.

However, for so-called "substantive crimes," in which it is essential to have  effectively evaded taxes prior to the start of a criminal proceeding, , the application of an ANPP should be carefully analyzed, since not only Laws Nos. 9,249/95 and 9,430/96, but also the higher courts have long since established payment of the tax debt at any stage of the criminal proceeding is a cause for extinguishment of liability.

If the repair of the damage is equated to payment of the tax debt, there would be no innovation in entering into an ANPP in tax crimes. On the contrary, the accused would be harmed because, in addition to paying the amount due to the tax authorities, he would have to comply with other conditions imposed by the Public Prosecutor's Office and would lose the possibility of, for a period of five years, entering into a new ANPP relating to any other crime.

^[1] The victim of the crime subject to the ANPP shall necessarily be notified when the agreement is ratified and in the event of non-compliance.

Category: Institutional

Gender-based distortions in treatment, especially in the labor market, are undoubtedly a highly topical issue, with repeated studies demonstrating the structural and social obstacles faced by women in achieving the equality of opportunities and treatment desired, not only in the professional but also in the social field.

There are also countless studies that demonstrate the benefits of diversity in corporate environments and in a company's productivity, but we are still far from equity in the evolution of professional careers between men and women. Women are outnumbered by men in leadership positions and roles, not only in business, but also in the civil service and politics.

Although eliminating the causes of this distortion does not depend solely on the legislator, an equity-oriented legal system plays a key role in this mission. The reverse is also true, i.e. a system that deepens distortions is immensely damaging and should be exposed.

In this context and exemplifying the benefits of a legal system oriented towards equity, the recent declaration of unconstitutionality, by the STF, of the levy on the employer's social security contribution in maternity leave pay deserves to be highlighted. The decision was rendered in the judgment of Extraordinary Appeal No. 576.967/PR under the general repercussion system for admitting appeals. What it judges and condemns, in essence, is the discrimination and prejudice that causes discriminatory charges arising from hiring a woman, that is, at the base of corporate careers: hiring women is arguably more expensive than hiring men. And the STF has taken a step in neutralizing the harms of an inequitable system.

From a purely technical standpoint, it was established that, as maternity leave pay is a social security benefit, it is not of the nature of consideration for work performed. This led to the understanding that maternity leave pay cannot be included in the calculation basis of the social security contribution borne by the employer.

The judgment brought in an important reflection by the Supreme Court regarding the application, ultimately, of the principles that guide the democratic rule of law. There is a specific direction in the majority opinion, by Justice Luis Roberto Barroso, towards:

• the need for unburdening the female workforce as a way to implement the principle of equal protection between men and women;

• the impossibility of burdening the individual in the Brazilian social security system due to a circumstance or fact of life that is peculiar to him/her for biological reasons, in this case, the exclusive capacity of women to become pregnant;

• the exclusion of taxation on maternity leave pay favors equal protection, the protection of motherhood and the family, in addition to reducing discrimination between men and women in the labor market.

Although the analysis is restricted to the context of labor relations, the opinion draws attention to another type of distinction in the treatment of men and women not yet widely discussed in Brazil: the more onerous taxation of women than men.

Recently, the Research Group on Taxation and Gender, linked to the Tax Law Center of the Getulio Vargas Foundation's São Paulo School of Law,^[1] conducted a deep analysis in a study called "Tax Reform and Gender Inequality",^[2] which presented suggestions for amendments to existing reform proposals in order to contemplate the promotion of gender equality through the instrument of taxation.

Usually called tax women or pink tax, studies on the subject expose the unequal treatment in the pricing of products intended for the female audience by clear marketing strategy,^[3] which attracts for them levying of a higher tax burden.

The high tax burden is due to the classification of these products as non-essential or superfluous, although they may be related to: (i) women's physiological needs; (ii) female empowerment; or (iii) demands socially imposed on women.

Added to this the fact that, in most situations, products that are essential for women have no equivalent in the male world. This is the case, for example, with sanitary pads. This item is of indispensable use due to the physiological condition of women. There is no substitute with a lower tax burden.

According to the “taxmeter", on February 14, 2021,^[4] the tax burden levied on sanitary pads was 34.48%, comparable to products such as chewing gum (34.24%) or higher than for others, such as stuffed animals (29.92%).

The direct reflection of high taxation is the inaccessibility of these products for low-income women, which is not alleviated by supply in the public health system. A survey of 9,062 women conducted by a sanitary pad brand^[5] shows that, in the 12-14 age group, 22% of girls say they don't have access to reliable menstrual products because they can't afford them or the products are not sold close to home. The percentage rises to 26% among women between 15 and 17 years old and drops to 19% in the 18 to 25 age group.

In addition to affecting women's health, the high taxes levied on this essential consumer product unquestionably entail clear restrictions on social, professional, and educational life. In fact, without access to the item and forced to resort to unsuitable substitutes, many women and adolescents stop leaving their homes out of fear, insecurity, and discomfort.

The high tax burden imposed on cosmetic products, especially on makeup, has equally relevant impacts on the social context and on the labor market itself. According to the taxmeter on February 14, 2021, the tax burden levied on makeup items varied from 51.41% (domestic) to 69.53% (imported). As a counterpoint, the tax burden applied on over products designed for the male public was much lighter, such as shaving cream (42,56%), suits (34,67%), or ties (35,48%).

The discrepancy becomes more evident when taxation on makeup is compared to that levied, for example, on a soccer team jersey (34.67%) or an electric razor (48.11%).

The origin lies in the erroneous classification of makeup items as "superfluous products" and cannot be explained if not by the distancing by tax authorities and legislators from the needs of the female social and professional universes. Women who deal directly with the public in their work, such as receptionists, secretaries, salespeople, stewardesses, or even those who assume high positions in companies, such as officers, executives, and managers are compelled, for cultural reasons and social or corporate codes, to present themselves with makeup.

There are cases recognized in precedents of the Labor Court in which the employer must bear the burden resulting from the use of makeup because it is imposed for the exercise of the function, as is the case of stewardesses. There are, however, dress and presentation codes that, although unwritten, are equally imposed and unquestionably obeyed by women in the most varied of social segments, jobs, and positions, inside and outside the work context.

In addition to meeting social and professional codes, the function of makeup is at the service of female empowerment, by raising the self-esteem of women and making them feel more secure in performing their professional and social activities. Mascara and a lipstick are often enough to make a woman feel more at ease at work or even at a social event.

In this sense, makeup can and is in fact used by many women as protection against the gender inequality rooted in our society. Therefore, its qualification as a superfluous item is rejected. On the contrary, in general it is essential for women, as it supports their self-esteem and, at the same time, allows them to comply with social and professional codes.

This topic has been frequently discussed on social networks and in the media in general, with great engagement on the part of cosmetic product brands.

Besides the benefit associated with women's self-esteem, the labor market related to the makeup sector itself employs mostly self-employed women, providing them with financial capacity. This fact points to another factor of social discrimination, which stems from the serious consequences of the high tax burden imposed on these products.

With these brief considerations, one can see how the tax law directly interferes, and to some extent encourages, differentiation between genders, albeit in a veiled and little discussed manner. This is because the principles of selectivity and essentiality are being applied in an erroneous manner, far removed from the current reality of society, and not guided by the imperative of gender equity.

Although significant and emblematic, the two examples addressed here do not exhaust the issue of distinction between genders in light of taxation. Other equally relevant examples have been debated and deepened by the studies Tax Women or Pink Tax and, also, by the Research Group on Taxation and Gender, linked to the Tax Law Center of the Law School of the Getulio Vargas Foundation in São Paulo.^[6]

It is therefore indispensable to approve bills directed at the accomplishment of a fair and neutral tax system, that preserves and promotes substantive equality of genders, exactly as assured by articles 3, 5, I, 145, paragraph 1, and 150, II, of the Federal Constitution.

^[1] Group coordinated by professors Tathiane Piscitelli, Núbia Nette Alves Oliveira de Castilhos, Andalessia Lana Borges Camara, and Simone Castro.

^[2] https://direitosp.fgv.br/sites/direitosp.fgv.br/files/arquivos/reforma_e_genero_-_sumario_executivo.pdf

^[3] This is the case, for example, of razor blades which, despite similar functionality, are priced higher when targeting the female audience. In the same sense, shampoos designed for women tend to be more expensive, although produced by the same brands as those designed for men.

^[4] https://impostometro.com.br/home/relacaoprodutos

^[5] https://revistamarieclaire.globo.com/Comportamento/noticia/2020/01/isencao-de-impostos-sobre-absorventes-menstruais-e-nova-luta-feminista.html

^[6] In this context, there are examples of the tax system on child support, the impacts of the regressive taxation system on women, with the concentration of the tax burden on consumption (and not on income), and the taxation on household essentials, often under women's responsibility.

Category: Tax

With the publication of Sefaz Resolution No. 202/21 and PGE Resolution No. 4671/21 in the Official Gazette of the State of Rio de Janeiro, enrollment into PEP-ICMS - the special program for payment in installments of tax debts of the State of Rio de Janeiro - has been definitively regulated. Interested taxpayers are already able to join the program. The deadline for including debts is April 29, 2021. This is an excellent opportunity for taxpayers interested in bringing their situation into good standing with the Rio de Janeiro State Tax Authority.

PEP-ICMS covers tax debts, whether formalized or not, related to the ICMS (Tax on Circulation of Goods and Services, except ICMS by tax substitution), the FECP (State Fund to Combat Poverty and Social Inequalities), the FEEF (State Fund for Fiscal Equilibrium), and the FOT (Temporary Budgetary Fund). The amounts may or may not be recorded as collectible debt and derive from taxable events occurring up to August 31, 2020. There is a reduction in legal penalties and default surcharges, depending on the payment method chosen by the taxpayer. For lump sum payments, the reduction is 90% of the surcharges. PEP-ICMS also allows installment payment of debts and establishes reductions of attorneys' fees for debts recorded as collectible debt.

The new resolutions establish that the request to join the PEP-ICMS for debts not recorded as collectible debt will be carried out through the Fisco Fácil Portal (“Easy Tax Portal”), on the website of Sefaz-RJ or in person, at the tax office of the taxpayer's jurisdiction that does not have access to the Fisco Fácil Portal.

As for the debts registered at outstanding debt, the application must be made directly on the website of the Attorney General of the State (PGE). Only in exceptional circumstances may the request for adherence be requested from the Attorney's Office of the Outstanding Debt of the Capital or the regional offices competent for each debt. Such cases will be reported on the PGE-RJ website.

As one of the conditions for the enrollment into PEP-ICMS, the taxpayer must become aware of all pending decisions and waive suits, challenges, and appeals filed related to the debts that will be included in PEP-ICMS, therein waiving them.

If the debt to be included in PEP-ICMS is not listed in the Access Portal, the taxpayer should contact Sefaz-RJ via e-mail This email address is being protected from spambots. You need JavaScript enabled to view it..

The taxpayer must obtain the DARJs for the payment of the installments in the Fisco Fácil Portal and/or at the PGE website. Failure to pay the first installment will cause the enrollment to be rejected and the debt to be forwarded for collection in court.

Among the causes for exclusion from PEP-ICMS, the following stand out:

• failure to pay more than two installments simultaneously, whether or not consecutive;

• the existence of an installment or installment balance unpaid for a period longer than 90 days;

• default of the tax due, for more than 60 days, by any establishment of the legal entity beneficiary of PEP-ICMS, regarding taxable events occurring after adherence to the program.

The last condition highlighted above is of utmost importance for taxpayers, since it means that, while there are installments falling due under PEP-ICMS, taxpayers must continue to discharge payments of taxes due for triggering events after the enrollment into the program, under penalty of exclusion from PEP-ICMS.