O Public Ministry of Labor in São Paulo (MPT-SP) filed four public civil actions last Monday (8) against transport application companies, accused of labor fraud.
The multinationals Uber (USA), 99 (China), Rappi (Colombia) and Lalamove (Hong Kong) are targets of actions, which ask for recognition of the employment relationship of drivers and deliverymen throughout Brazil [clique no nome das empresas para ler cada ação, na íntegra].
The MPT requires companies to immediately register their drivers in their work card, under penalty of a fine of R$ 10 thousand per worker in an irregular situation.
Also read: How Uber Manipulates Jurisprudence to Avoid Recognition of Employment Relationship
Attorneys Eliane Lucina, Tatiana Simonetti, Rodrigo de Castilho and Renan Kalil, in articulation with the National Coordination for Combating Fraud in Labor Relations (CONAFRET), also ask companies to pay compensation for collective moral damages, equivalent to 1% of each company’s gross revenue.
The prosecutors claim, based on data provided by the company 99, that 99% of drivers registered in the application worked at least four days a week between 2018 and 2019. In other words, this is not an occasional job, but a job.
The other companies did not provide the required data.
In addition to the precariousness and impact on the income of the families of drivers and deliverymen, prosecutors emphasize that the country fails to collect taxes due to the maneuver adopted by companies – which refer to workers as “partners”.
With the processes filed this Monday (8), the MPT reaches 12 public civil actions for platforms to recognize employment relationships.
The actions against Uber, 99, Lalamove and Rappi were distributed, respectively, to the 4th, 72nd, 84th and 55th Labor Court of São Paulo, where they will be judged.
The article sought out the companies mentioned.
The American Uber responded through a note:
“Uber clarifies that it did not have access to the aforementioned lawsuit and that it did not receive any notification from the Judiciary before being contacted by the press. As soon as Uber is notified of the opening of the lawsuit, it will present all the necessary elements to demonstrate that the allegations and requests from the Public Ministry of Labor are based on a mistaken understanding of the company’s operating model and the activity of partner drivers.
The partner drivers are not employees or provide services to Uber: they are independent professionals who hire the digital intermediation technology offered by the company through the application. Drivers freely choose the days and times to use the app, whether or not they accept trips and, even after that, there is still the possibility of cancellation. There are no goals to be met, there is no minimum number of trips required, there is no boss to supervise the service, there is no obligation of exclusivity in hiring the company and there is no determination to comply with the minimum working hours.
In recent years, the various instances of the Labor Court have been building solid jurisprudence confirming the fact that there is no employment relationship between Uber and partner drivers, pointing out the lack of onerousness, habituality, personality and subordination, requirements that would configure the employment relationship . Across the country, there are already more than 1,450 decisions by Regional Courts and Labor Courts in this regard, and there is no consolidated decision that determines the registration of a partner driver as an employee of Uber.
In relation to Uber’s role in the courts, the MPT’s assertion that there is a ‘manipulation of jurisprudence’ does not hold up when confronted with reality. Of the total lawsuits against Uber completed by 2020, about 10% resulted in agreements, a rate that represents less than half the average in the entire Labor Court in the same year – 23% – according to the Justice in Numbers report of the National Council of Justice.
The Superior Labor Court, the highest labor court in the country, has already recognized, in four judgments, that there is no employment relationship between Uber and its partners. In the most recent one, the 5th Panel ruled out the hypothesis of subordination in the driver’s relationship with the company, since he can ‘turn the application on and off whenever he wants to’ and ‘make himself available, at the same time, for as many applications of travel desired’.
In March, the 4th Panel unanimously decided that the use of the application does not constitute a link, as there is ‘ample autonomy for the driver to choose the day, time and way of working, being able to turn off the application at any time and for as long as necessary, without no binding to goals determined by Uber’.
A similar understanding has already been adopted in two other TST judgments in 2020, in February and in September, and also by the Superior Court of Justice in judgments since 2019 – the most recent was published in September.”
99 informed that the company is represented in the following position of the Brazilian Association of Mobility and Technology (Amobitec):
“Companies associated with Amobitec are responsible for intermediating between consumers, commercial establishments and partner professionals, drivers and deliverymen who work independently and without labor subordination to the platforms.
Contrary to the action proposed by the MPT, the vast majority of these professionals have repeated that they do not want to be linked to a platform. According to a survey by the Locomotiva Institute, two out of three couriers prefer the autonomous and flexible work model to registration with a card, a result similar to that identified in a study carried out by the IDB (Inter-American Development Bank) with drivers.
The activity of the partners through the platforms is based on flexibility and autonomy, allowing complete freedom in choosing the days, times and forms of work, without imposing shifts or minimum workload, ensuring their free entry and exit at any time, as well as acting in different applications.
It is important to highlight decisions already rendered both by the Superior Labor Court and by the Superior Court of Justice, which, when analyzing the matter, in different processes, have already stated that application partners are self-employed professionals with no employment relationship with the platforms. In the most recent judgment, in May 2021, the TST recognized ‘the absence of elements that characterize the employment relationship’, since the partner himself revealed ‘that he could turn the application on and off whenever he wanted’, as well as ‘could make yourself available, at the same time, for as many applications as you want’.”
O Brazil in fact he was unable to contact Rappi, which informed other media outlets that it does not intend to comment on the case.
The report awaits a return from the company Lalamove. The story will be updated as soon as there is a response.
Edition: Vivian Virissimo