LABOR AND ECONOMIC MEASURES TO SUPPORT MAINTENANCE OF BUSINESS ACTIVITIES AND WORKSTATIONS IN THE MIDDLE OF THE PANDEMIC
In Brazil, the impacts of the pandemic of the new Coronavirus (Covid-19) on the economy are evident, in which there is a temporary closure of trade due to measures determined by the government as a way to contain the progress of the disease. The business sector has warned of the economic difficulties it faces and the possibility of dismissing countless employees.
The logistics sector, for example, despite being in full activity, by land, rail, river, and air ( mainly to guarantee the supply of essential inputs during the pandemic) there was a reduction in the volume of activity by about 40%, bringing a negative impact on logistics companies. As a result, the logistics industry has had cash problems and difficulties in paying employees and suppliers, especially those carriers that work directly with goods not considered essential at this time, such as furniture, decorative items, household items, stationery, building material, electronics and computers, telecommunications, textiles and footwear, jewelry and other luxury items, imported goods in general, etc.
Besides, due to the pandemic has taken place a significant reduction in the displacement of people and a substantial decrease in the consumption of gasoline, ethanol, and diesel, impacting the transport of fuel in tank trucks.
To face the economic effects of the Covid-19 pandemic, to provide means to maintain the activities of companies and jobs, due to the Declaration of Public Disaster referred to in Legislative Decree No. 6, 2020, the Federal Government has launched some provisional measures to establish temporary labor measures and facilitate the contracting of low-interest credit lines with an extended payment term.
Through MP 927/2020, the Federal Government relaxed a series of labor rules.
Among the changes, we have the preponderance of the individual written agreement over the other normative, legal, and business instruments.
Other possibilities are a) implementation of the telework system, such as the home office, for example, regardless of the individual or collective agreements; b) anticipation of individual vacation or collective vacation concession, in a period of not less than five days, with the payment of vacation remuneration until the 5th working day of the month following the beginning of the vacation and the sum of the constitutional 1/3 after the concession, up to the deadline for payment of the 13th salary; c) use and anticipation of holidays to compensate for the unworked period, depending on the employee's agreement in an individual written agreement; and d) implementation, through a collective or individual formal bargaining, of the hour bank system, with compensation within up to 18 months, from the extension of the workday by up to 2 daily overtime hours, not exceeding ten regular hours. In all cases, the employee must be notified, in writing, or electronically, at least 48 hours in advance.
Besides, the MP suspends the administrative requirements for safety and health at work and authorizes the postponement of the FGTS deposit of workers referring to the competences of March, April and May 2020, and such payment must be made from July 2020, in up to 6 monthly installments, with no update, fines, and charges. Via the MP 936/2020, the Federal Government instituted complementary labor rules and measures to face the state of public calamity caused by COVID-19. The MP/936/2020 set forth: a) the Emergency Benefit of Preservation of Employment and Income to be paid monthly by the government in value proportional to the amount of unemployment insurance to which the employee would be entitled, only in the event of equivalent reduction of working hours and wages and b) temporary suspension of the employment contract, which may be implemented by employers through an individual labor agreement, or through collective bargaining, with specific rules for each case.
For adhesion, the employer must file the information on the reduction of the working day and salary or the temporary suspension of the employment contract to the federal government executive body within ten days, counted from the date of the agreement's conclusion. The first installment is paid in thirty days, calculated from the date of the outcome of the deal and exclusively while the proportional reduction of the working day and salary lasts or the temporary suspension of the employment contract.
The reduction in working hours and wages maybe 25%, 50%, or 70%, except for a different provision through a collective agreement or agreement, maintaining the value of the hourly wage, and being productive for up to 90 days. In this case, the emergency benefit will be calculated at the same percentage as the reduction (25%,50% e 70%). The suspension of the employment contract will be allowed for a maximum period of 60 days, and with the maintenance of the payment of all benefits granted by the employer to its employees, such as the health plan, for example. In this case, the emergency benefit will be due in the percentage of 100% of unemployment insurance, in the case of companies with annual gross revenue of R $ 4.8 million; and in the percentage of 70% of unemployment insurance, in the case of companies with annual gross income higher than R $ 4.8 million, in which case the employer must complement it with a monthly compensatory aid, of an indemnity nature, in the amount of 30 % of the employee's salary.
In both cases, the individual written agreement must be sent to the employee (for approval or not), at least two calendar days in advance. Also, the employee will be guaranteed temporary job stability during the agreed reduction or suspension period and, after the reinstatement of the day, for a period equivalent to the reduction or suspension period. On the other hand, through MP 944/2020, the Federal Government instituted the Emergency Employment Support Program, providing credit lines to entrepreneurs, business companies and corporations, and cooperative companies, except for credit companies to pay a salary of its employees, with an extended grace period and reduced interest rates.
The cited program fit businesses with annual gross revenue greater than R $ 360,000.00 (three hundred and sixty thousand reais) and less than or equal to R $ 10,000,000.00 (ten million reais), calculated based on the year of 2019.
The credit lines granted under the program will cover the entire contractor's payroll for two months, limited to an amount equivalent to up to twice the minimum wage per employee (R$ 2,090.00), which will be destined exclusively for the payment of employee salaries.
The contracting of this credit line can be formalized until June 30, 2020, ruled by an interest rate of 3.75% per year on the amount and granted 36 months for payment, and a 6-month grace period for starting pay. Businesses that join the program will not be able to dismiss employees without legally allowed cause from the reduction or suspension-period until the completion of the same amount of time of reduction or suspension after the employee returns to the regular job contract with his/her employer.
The MP 958/2020, in turn, aims to facilitate access to credit for companies, by easing, until September 30, 2020, the requirements imposed on their granting / contracting and renegotiation, such as exemption from contractual registration instruments and the waiver of the presentation of certificates of regularity related to electoral obligations, Guarantee Fund for Seniority, Social Security, CLT, and the Tax Authorities. According to the MP, when the beneficiaries contract and renegotiate credit operations, financial institutions must waive the requirement:
1.Discharge certificates (§ 1 of Article 362 of the Consolidation of Labor Laws)
2.Proof of voting in the last election (item IV of § 1 of article 7 of the - Electoral Code)
3.Negative certificate of registration of active debt of the Union (art. 62 of Decree-Law nº 147, of February 3, 1967)
4.FGTS Certificate of Good Standing (items "b" and "c" of the caput of article 27 of Law No. 8,036, of May 11, 1990)
5.Debt Clearance Certificate - CND (item "a" of item I of the caput of article 47 of Law No. 8,212, of July 24, 1991, and article 10 of Law No. 8,870, of April 15, 1994)
6.Discharge with the FGTS (Article 1 of Law No. 9,012, of March 30, 1995)
7.Proof of payment of the ITR (Article 20 of Law No. 9,393, of December 19, 1996)
8.Prior consultation with the Informative Registry of unpaid credits from the federal public sector - Cadin (Article 6 of Law No. 10,522, of July 19, 2002)
With these measures, a higher survival rate of companies is expected, with the preservation of jobs. According to the government, the more companies are preserved, the faster the economic recovery will be when the health restrictions related to COVID-19 are lowered, with a consequent positive impact on the collection and preservation of jobs.
By Rafaella Borges
Lawyer, LL.M in Labor Law and Labor Law Process.