Decision on Uber brings legal uncertainty and reveals judicial activism

A first instance judge’s decision to fine Uber R$1 million for collective damages and force the hiring of all drivers was seen with surprise and concern by labor market experts and labor lawyers heard by the People’s Gazette.

The sentence, signed by judge Mauricio Pereira Simões, of the 4th Labor Court of São Paulo, has national coverage and was handed down in a public civil action filed by the Public Ministry of Labor in São Paulo (MPT-SP), in 2021. It was the first favorable decision in a series of actions filed by the MPT-SP against transport applications, requesting recognition of the employment relationship of drivers and delivery people.

According to the judge, Uber will have a period of six months after the action becomes final (when resources are exhausted) to comply with the determinations. New professionals must also, according to the judge, be included in the CLT. Uber has already announced in a statement that it will appeal the decision.

For economist José Marcio Camargo, specialist in labor relations and partner at Banco Genial, the decision goes against the decisions of the Superior Labor Court (TST), which already considered the non-existence of an employment relationship between the platform and the workers. “Uber is an alternative way of connecting the passenger, who demands the service, to the driver, who offers it”, he explains. There is no sense in rigidifying and bureaucratizing the relationship.”

For him, the necessary criteria for establishing an employment relationship do not exist. There is no hierarchy or subordination, as drivers can define the number of hours to work, accept or reject rides or even turn off their cell phones, without being subject to penalties. “The passenger is the one who pays for the service. If there is a link, it is between him and the driver.”

Decision brings legal uncertainty and deters investment

Likewise, labor lawyer Pedro Chicarino, partner at Chicarino, Quaresma & Tanaka Advogados, classifies the decision as “highly reckless” because it could extend to other virtual platforms. “The sentence is completely out of touch with the reality of the job market, which has suffered disruptive impacts due to technological innovations”, he states.

He recalls that there has already been some progress with the labor reform and the outsourcing law, but further adjustments will be necessary. “There is no logic in linking our CLT, which is 80 years old, to the new working conditions.” Chiacrino believes that the decision will be reversed, but highlights the legal uncertainty. “Many companies are watching this decision and may give up on the country, at a time when we need new investments so much.”

For him, who analyzed the judge’s sentence, the argument brings a mistaken understanding when seeing the subordination criterion, necessary for the recognition of the link, the evaluation methodology and the maintenance of drivers’ personal data, conditioning the execution of the service to those registered. “These are security measures, which could not be implemented differently.”

Drivers are not interested in hiring, says TST minister

According to jurist Ives Gandra Martins Filho, minister of the Superior Labor Court (TST), the decisions of the 4th. The TST panel, which he is part of, does not recognize the employment relationship between the digital platform worker and the operator. Mainly because contracts do not meet the subordination requirement. “The worker’s choice to make himself or herself available for the race or not is typical of self-employment and not an employment relationship”, he reinforces.

The minister believes that the sentence will be reviewed, since, if not, Uber would immediately leave Brazil. It reveals that 85% of the app’s approximately 700,000 drivers expressed no interest in the hiring system.

For Camargo, if confirmed, the decision would harm not only the workers, but the country and society, which has already incorporated the new means of transport. “Everyone uses it because it’s good. For the company, for the driver and for the customer”, he says.

Rodrigo Marinho, president of the Instituto Livre Market and executive director of the Frente Parlamentar do Livre, also says he is confident in the reversal of the sentence. He believes that the wave of actions against Uber is due to the fact that the company was the first player (first actor) in the individual platform transport market. “Uber is a startup that innovated and touched many interests. From now on, the model must be followed and the market is open to new competitors”, he assesses.

The biggest concern is with judicial activism

For Camargo, the most worrying thing about the decision is the fact that the country’s Judiciary, once again, is “making” the laws. “Some judges have decided not based on the law, but on what they would like to see in the law. This is completely authoritarian,” he says.

According to him, the Federal Supreme Court (STF) has also done this with some frequency. “The STF sets an example and is being followed. Justice, from the Supreme Court, is giving itself the right to legislate.”

The same opinion is corroborated by Gandra Filho, a great critic of judicial activism, which “is a pandemic in Brazil today”. For him, the legislator’s purpose is no longer being considered, but rather the interpreter’s judgment. “It is the greatest anti-democratic act possible, as the will of the representative elected by the people is being replaced by the will of a technician. Democracy is the government of laws. Judicial activism is the government of men”, he criticizes.

He considers that the STF has incorporated the thesis of “neoconstitutionalism” or “legal voluntarism”, in which the judge seeks a greater role in the legal system. “The bitter fruits of this position are legal uncertainty and the disruption of society in its values”, highlights the minister.