On Thursday (8), Brazil’s Supreme Court began the judgement on whether or not there is an employment bond between app companies and delivery workers. The issue is one of the most contemporary topics in debates about the world of work and is in the Court's plenary session for the first time. The ministers will analyze Complaint number 64,018, presented by the app company Rappi against previous decisions that recognized the employment relationship between delivery workers and the company.
Rappi contests the decisions of the 4th Panel of the Regional Labor Court of the 3rd Region (TRT3, in Portuguese) and the 2nd Panel of the Superior Labor Court (TST, in Portuguese), claiming that recognizing a labor relationship, in this case, violates previous decisions by the Supreme Court, which, it argues, has already recognized employment relationships that are not necessarily ruled by the Consolidated Labor Laws (CLT, in Portuguese).
The rapporteur of the case at the Supreme Court plenary is Minister Alexandre de Moraes, who will be the first to vote and has already shown signs of opposing recognition of the employment relationship. In November 2023, he granted an injunction that suspended the proceedings of the case before the TRT3 and, therefore, the enforcement of the sentence against the app company. In the case file, the minister said that the Court's understanding "seems to disregard the STF's conclusions, which allow for various types of [employment] contracts other than the traditional structure of the employment contract governed by the CLT.” Moraes cited, for instance, the Supreme Court decision that validated the outsourcing of core activities.
On the backstage of the legal world, the current understanding of the issue is that the Court is prone to favoring Rappi. This is because ministers have given repeated signs of aligning their ideas on the topic with the interests of employers. "In general, the STF's jurisprudence has been very hostile to labor rights. I must recall the Supreme Court's position validating outsourcing and fourth-party outsourcing and also its decisions that endorsed labor reform, which added a lot of precarious measures to the Brazilian labor market," recalls researcher Danilo Morais, a PhD law student at the University of Brasilia (UnB) who focuses on the STF's jurisprudence regarding social rights.
Morais, who also teaches postgraduate courses at Ibmec in Brasília, points out that the decision of the Rappi case is likely to have a major impact on Brazil’s labor market. He highlights that the Court could open a "window of opportunity for precariousness," harming app workers even more.
"In the wake of the phenomenon that has been called 'Uberization', this decision could be much more serious because, on the pretext of the absence of regulation – simply because employment relationships are mediated through information technologies – the Supreme Court could admit this exception as being sufficient to remove the most basic safeguards for workers in the labor market so that technology can be used not to establish a new form of work and adjust legislation to it, but to demolish the constitutional and labor franchises of the labor market."
The researcher points out that the judgment is of great relevance, not least because Uberization has expanded beyond app-related work. As a result, the Supreme Court's decision is likely to systematically affect the country’s entire labor economy. Besides, it could worsen the already difficult reality created for the working class in Brazil in recent years. "We're talking about a process that isn't just limited to these platforms because it's already reaching small businesses located in small neighborhoods," says Danilo Morais.
“Improper”
Jurist and labor law professor Souto Maior, who teaches at the University of São Paulo (USP), highlights that he considers it improper for the Court to decide the Rappi case. He explains that a constitutional complaint is a legal mechanism used to preserve the authority of Supreme Court decisions in cases where the judiciary takes a decision that opposes what the STF established and jeopardizes the constitutional order.
"The Supreme Court has no decision on this that would set a precedent for it to use this mechanism to consider this issue of the work done by delivery workers or app drivers to digital platform companies. Therefore, the Court is getting ahead of itself and will rule on this in a completely inappropriate procedural mechanism," says the professor.
Souto Maior points out that the normal procedure for a case like this would be through other appeals. "The TST decides and, after that, there are appeal mechanisms within the TST itself. Then, there are mechanisms for extraordinary appeals to the Supreme Court, remembering that an extraordinary appeal requires demonstrating that the matter would be constitutional and would necessarily involve the Supreme Court's assessment to guarantee the constitutional order. However, what we have in this case is something that doesn't fit in under any circumstances."
The lawyer stresses that Rappi's lawsuit deals primarily with issues regarding labor law. "Whether workers who provide services to Uber or iFood are employees or not, that's a factual issue, which involves applying CLT, labor rights, but it's not a constitutional question. The Supreme Court is using this constitutional complaint to bypass what would be the proper procedure. In a proper procedure, this issue wouldn't even reach the Supreme Court," he concludes.
Asked if he sees in this attitude an STF that is more political than legal, the professor says he sees in the case a Court that is prone to following the playbook of the economic sectors. "I see the Supreme Court very close to the economic sectors, in the sense that it is geared towards the interests of large companies. But not just those specific companies, but the economic power as a whole because the tendency is for the Supreme Court to rule that, in this type of work, there is no employment relationship. In doing so, it will rule out the application of labor law to a relationship that is, in fact, typically an employment relationship. The risk of this spreading to other labor relations is very real. It's no small thing what the Supreme Court can do with this judgment."
Edited by: Thalita Pires
