When a foreign worker provides services in Brazil the laws governing the contract are the laws of the country of origin or the laws of Brazil? This special article is about the foreign employment in Brazil and principles adopted by the Brazilian Labor Court on the demands arising from those relationships.
"The TST (Brazilian Supreme Labor Court) formally adopted the principle of "lex loci executionis" to regulate the labor relationships in Brazil."
The policy of the Labor Court is that the legal work relationship shall be governed by the laws of the country were the services are delivered as specify the Statement of Precedent No. 207/TST stated by the Supreme Labor Court in April, 2012, with base on the vote of the Vice- President Minister Maria Cristina Peduzzi at the Process 93.2000.5.01.0019-RR-219000.
The summary embraced the principle of "lex loci executionis" claiming to be the legal relationship governed by the labor laws of the country where the services are effectively render and not the country of the worker´s previous hiring.
However inversely to this principle the Law No. 7.064/1982 allow a different rule for Brazilians working abroad.
Such law (previously limited to Brazilian employees of engineering companies working abroad), enable the Brazilian companies rendering service in another country to choose to enforce the labor legislation with more beneficial standards, as taxation, vacation periods, etc.
The legislature that came through the Law No. 11.962/2009 changed the wording of Article 1 of Law No. 7.064/82, extending such rights to be enforced over all workers employed in Brazil and transferred by their employers to provide services abroad.
"Recent jurisprudence have removed the application of Abstract No. 207 that indicated the prevalence of the principle of more favorable rule over the principle of territoriality," said the Minister Pedruzzi, adding that this trend has also been observed in the legal legislation from other countries.
- Non-Brazilians have the same rights as Brazilians when working in Brazil:
The remarkable growth of the Brazilian economy in the recent years attracted the attention of large numbers of non-Brazilians to work in Brazil.
According to statistics from the Ministry of Justice (2014) there was a 57% growth in the number of foreign workers, reaching a total of 1.51 million in comparison to December of last year (2013).
It should be noted at this juncture, the increase in the flow of immigrants from other countries of South America, as Bolivians, Peruvians and Paraguayans, mostly without a college degree and who saw an opportunity to improve their living conditions in Brazil.
- What is the profile of the non-Brazilians who come to work into the country?
A lot of young people have been trained and are in search of new experiences in smaller companies, which offers the opportunity for rapid growth.
One cannot fail to mention illegal immigrants, which, despite this condition, constitutes a significant workforce laboring as street vendors, at the construction industry and in clothing manufactures, especially in the State of São Paulo, usually with low education and qualification.
When working in the country, the foreigner shall have the same labor rights of an employee native of Brazil, as 13th salary, vacation, Social Security rights, among others. Also worth mentioning the standard journey of eight hours per day or 40 per week, with one day off, preferably on Sundays.
There are numerous decisions by the Labor Court, in which foreigners claim the recognition of rights under the employment relationship, but it is not unanimous.
The Third Chamber of the Superior Labor Court ruled that the Brazilian Labor Court has jurisdiction over the action of an Argentine engineer who worked for years concomitantly in Brazil and Argentina. Dismissed after 23 years working as a contractor in a company on the area of telecommunications with subsidiaries in Brazil, the engineer asked for recognition of employment and the several rights arising from this type of labor contract. But he had this requests denied at the first and second instances.
Another case, judged by the Sixth Class of TST in September 2006, opened an important precedent. A Paraguayan illegally working in Brazil, won the right to be recognized as a formal employee after exercising the function of electrician for 17 years in a local small company. The rapporteur Minister Horacio de Senna Pires, granted the worker's appeal based on constitutional principles and the Mercosul Protocol of Cooperation, which provides equal treatment among those born in countries that have signed the pact (Argentina, Brazil, Paraguay and Uruguay), in their respective territories. Article 3 of the Protocol provides that "citizens and permanent residents of one of the States Parties shall enjoy the same conditions of citizens and permanent residents of another State Party, as well to free access to the Courts in the jurisdiction of that State for the protection of their rights and interests".
- Legal requirements to work in Brazil
As in any country there are legal requirements for non-Brazilians work in Brazil and it could not be different.
It was Law No. 6.815/80, regulated by Decree No. 86.715/81 that defined the legal status of these workers in the country and created the National Immigration Council (CNI) -Organ of the Ministry of Labor and Employment responsible, among other elements, for the formulation of immigration policy and coordination of the work activities in the country.
The CNI establishes and directs the granting of work permits for foreigners who intend to stay provisionally or permanently.The Ministry of Foreign Affairs issues a consular authorization to be registered in the passport - a "visa", allowing the worker to enter, work and remain in the country.
The visa (temporary or permanent) is the first obligation to be observed by those who enter in the country on a cultural vacation, business, as an artist, athlete, student, scientist, radio correspondent, newspaper, television or agency foreign news, among others. By the other hand, the permanent visa is specifically granted for those who wish to permanently reside and work regularly in Brazil.
Since 2006 there was an increase in the number of work permits issued for foreign workers. This is due (according to Paulo Sergio Almeida, former general coordinator of Immigration at the Ministry of Labour and Employment) to the increment of investments in Brazil, mainly in the sectors of industry, oil, gas and energy.
"There is crescent demand for the coming of professionals specialized in supervision and implementation of the most sensitive performances in the deployment of equipment and technology transfer," Almeida said in an article published on the website of the MTE.
However, this specialized professional are required to prove their qualification and / or experience, which should be done at the Ministry of Labor and Employment, through the presentation of diplomas, certificates or declarations provided by educational institutions.
A new criteria for the authorization of these professionals work with temporary visas were established by Resolution No. 64 of 09.13.2005 of the National Immigration Council. According to this resolution, to demonstrate the qualifications or experience the candidate will needs to demonstrate experience of a 2 (two) years alternately in the performance of mid-level profession, with minimum education of nine years or one year experience in the exercise of high level profession.
- Liability over underpaid work
São Paulo Labor Court has dismissed a civil suit filed by the Public Ministry of Labor (MPT) against exploitation of workers via underpaid salaries. A prime example was the action filed by MPT São Paulo in February 2012 against a large retail store for exploiting workers - mostly.
This was the first civil suit on "slave labor" involving foreigners in urban facilities in Brazil. The SP-MPT requested, the Labor Court of São Paulo to advance relief (immediate suspension of this practice), plus punitive damages to the collective of workers worth £ 5 million, to be reverted to the Fund of Workers Assistance (FAT). By the present time the civil action was not dismissed.
A BBC special program reported the situation of a group of 25 foreigners working in the factory of a giant commodities producer in the Federal District, who worked in the poultry slaughter by halal method that were living in poor conditions of accommodation in company. The MPT and the Ministry of Labor conducted inspections to investigate those allegations of mistreatment. But the case of this factory repeats in several other Brazilian States.
Another unit of this giant commodities producer, located in the municipality of Parana State was processed by the Ministry of Labor of Parana through civil action in the Labor Court which granted an injunction banning the work of 30 Muslims working as outsourced manpower to perform halal slaughter.
According to prosecutors, outsourcing - as made by the Group of Halal Slaughter - is irregular because the slaughter of animals is the core activity of the company.
Finally, companies interested in using non-Brazilian in the execution of its activities in Brazil should seek detailed information about the local legislation in order to properly calculate the costs, taxes and other rights incident over wage as per the Brazilian Labor Law.
ABOUT THE AUTHOR: Mauricio Ejchel
Expert in International Law, Civil, Commercial Planning and Labor Law, Mauricio Ejchel holds a Bachelor of Law Degree from the Pontifical Catholic University of the State of São Paulo in 1994 and is partner at the law firm MF Ejchel Advocacy. As a consultant lawyer provides legal consultancy to domestic and foreign companies, and is also an experienced litigation attorney pleading before the Brazilian Courts in a considerable number of lawsuits and providing services in a wide ranges of location thru partner offices in several regions in Brazil and abroad.
The policy of the Labor Court is that the legal work relationship shall be governed by the laws of the country were the services are delivered as specify the Statement of Precedent No. 207/TST stated by the Supreme Labor Court in April, 2012, with base on the vote of the Vice- President Minister Maria Cristina Peduzzi at the Process 93.2000.5.01.0019-RR-219000.
The summary embraced the principle of "lex loci executionis" claiming to be the legal relationship governed by the labor laws of the country where the services are effectively render and not the country of the worker´s previous hiring.
However inversely to this principle the Law No. 7.064/1982 allow a different rule for Brazilians working abroad.
Such law (previously limited to Brazilian employees of engineering companies working abroad), enable the Brazilian companies rendering service in another country to choose to enforce the labor legislation with more beneficial standards, as taxation, vacation periods, etc.
The legislature that came through the Law No. 11.962/2009 changed the wording of Article 1 of Law No. 7.064/82, extending such rights to be enforced over all workers employed in Brazil and transferred by their employers to provide services abroad.
"Recent jurisprudence have removed the application of Abstract No. 207 that indicated the prevalence of the principle of more favorable rule over the principle of territoriality," said the Minister Pedruzzi, adding that this trend has also been observed in the legal legislation from other countries.
- Non-Brazilians have the same rights as Brazilians when working in Brazil:
The remarkable growth of the Brazilian economy in the recent years attracted the attention of large numbers of non-Brazilians to work in Brazil.
According to statistics from the Ministry of Justice (2014) there was a 57% growth in the number of foreign workers, reaching a total of 1.51 million in comparison to December of last year (2013).
It should be noted at this juncture, the increase in the flow of immigrants from other countries of South America, as Bolivians, Peruvians and Paraguayans, mostly without a college degree and who saw an opportunity to improve their living conditions in Brazil.
- What is the profile of the non-Brazilians who come to work into the country?
A lot of young people have been trained and are in search of new experiences in smaller companies, which offers the opportunity for rapid growth.
One cannot fail to mention illegal immigrants, which, despite this condition, constitutes a significant workforce laboring as street vendors, at the construction industry and in clothing manufactures, especially in the State of São Paulo, usually with low education and qualification.
When working in the country, the foreigner shall have the same labor rights of an employee native of Brazil, as 13th salary, vacation, Social Security rights, among others. Also worth mentioning the standard journey of eight hours per day or 40 per week, with one day off, preferably on Sundays.
There are numerous decisions by the Labor Court, in which foreigners claim the recognition of rights under the employment relationship, but it is not unanimous.
The Third Chamber of the Superior Labor Court ruled that the Brazilian Labor Court has jurisdiction over the action of an Argentine engineer who worked for years concomitantly in Brazil and Argentina. Dismissed after 23 years working as a contractor in a company on the area of telecommunications with subsidiaries in Brazil, the engineer asked for recognition of employment and the several rights arising from this type of labor contract. But he had this requests denied at the first and second instances.
Another case, judged by the Sixth Class of TST in September 2006, opened an important precedent. A Paraguayan illegally working in Brazil, won the right to be recognized as a formal employee after exercising the function of electrician for 17 years in a local small company. The rapporteur Minister Horacio de Senna Pires, granted the worker's appeal based on constitutional principles and the Mercosul Protocol of Cooperation, which provides equal treatment among those born in countries that have signed the pact (Argentina, Brazil, Paraguay and Uruguay), in their respective territories. Article 3 of the Protocol provides that "citizens and permanent residents of one of the States Parties shall enjoy the same conditions of citizens and permanent residents of another State Party, as well to free access to the Courts in the jurisdiction of that State for the protection of their rights and interests".
- Legal requirements to work in Brazil
As in any country there are legal requirements for non-Brazilians work in Brazil and it could not be different.
It was Law No. 6.815/80, regulated by Decree No. 86.715/81 that defined the legal status of these workers in the country and created the National Immigration Council (CNI) -Organ of the Ministry of Labor and Employment responsible, among other elements, for the formulation of immigration policy and coordination of the work activities in the country.
The CNI establishes and directs the granting of work permits for foreigners who intend to stay provisionally or permanently.The Ministry of Foreign Affairs issues a consular authorization to be registered in the passport - a "visa", allowing the worker to enter, work and remain in the country.
The visa (temporary or permanent) is the first obligation to be observed by those who enter in the country on a cultural vacation, business, as an artist, athlete, student, scientist, radio correspondent, newspaper, television or agency foreign news, among others. By the other hand, the permanent visa is specifically granted for those who wish to permanently reside and work regularly in Brazil.
Since 2006 there was an increase in the number of work permits issued for foreign workers. This is due (according to Paulo Sergio Almeida, former general coordinator of Immigration at the Ministry of Labour and Employment) to the increment of investments in Brazil, mainly in the sectors of industry, oil, gas and energy.
"There is crescent demand for the coming of professionals specialized in supervision and implementation of the most sensitive performances in the deployment of equipment and technology transfer," Almeida said in an article published on the website of the MTE.
However, this specialized professional are required to prove their qualification and / or experience, which should be done at the Ministry of Labor and Employment, through the presentation of diplomas, certificates or declarations provided by educational institutions.
A new criteria for the authorization of these professionals work with temporary visas were established by Resolution No. 64 of 09.13.2005 of the National Immigration Council. According to this resolution, to demonstrate the qualifications or experience the candidate will needs to demonstrate experience of a 2 (two) years alternately in the performance of mid-level profession, with minimum education of nine years or one year experience in the exercise of high level profession.
- Liability over underpaid work
São Paulo Labor Court has dismissed a civil suit filed by the Public Ministry of Labor (MPT) against exploitation of workers via underpaid salaries. A prime example was the action filed by MPT São Paulo in February 2012 against a large retail store for exploiting workers - mostly.
This was the first civil suit on "slave labor" involving foreigners in urban facilities in Brazil. The SP-MPT requested, the Labor Court of São Paulo to advance relief (immediate suspension of this practice), plus punitive damages to the collective of workers worth £ 5 million, to be reverted to the Fund of Workers Assistance (FAT). By the present time the civil action was not dismissed.
A BBC special program reported the situation of a group of 25 foreigners working in the factory of a giant commodities producer in the Federal District, who worked in the poultry slaughter by halal method that were living in poor conditions of accommodation in company. The MPT and the Ministry of Labor conducted inspections to investigate those allegations of mistreatment. But the case of this factory repeats in several other Brazilian States.
Another unit of this giant commodities producer, located in the municipality of Parana State was processed by the Ministry of Labor of Parana through civil action in the Labor Court which granted an injunction banning the work of 30 Muslims working as outsourced manpower to perform halal slaughter.
According to prosecutors, outsourcing - as made by the Group of Halal Slaughter - is irregular because the slaughter of animals is the core activity of the company.
Finally, companies interested in using non-Brazilian in the execution of its activities in Brazil should seek detailed information about the local legislation in order to properly calculate the costs, taxes and other rights incident over wage as per the Brazilian Labor Law.
ABOUT THE AUTHOR: Mauricio Ejchel
Expert in International Law, Civil, Commercial Planning and Labor Law, Mauricio Ejchel holds a Bachelor of Law Degree from the Pontifical Catholic University of the State of São Paulo in 1994 and is partner at the law firm MF Ejchel Advocacy. As a consultant lawyer provides legal consultancy to domestic and foreign companies, and is also an experienced litigation attorney pleading before the Brazilian Courts in a considerable number of lawsuits and providing services in a wide ranges of location thru partner offices in several regions in Brazil and abroad.
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