See the types of employment contracts that exist today – 04/12/2023 – Market

Fixed-term, indefinite, temporary, intermittent, part-time contract. The names and types foreseen in the legislation are many, but, with so many rules of their own, this diversity ends up underused.

Get to know some of these modalities here and understand the purpose for which they were created and why they did not take off.

INTERMITTENT CONTRACT

The modality is recent and was created especially to serve the service sector, but it is little used in relation to the total. In November 2022, the balance of intermittent vacancies was 10,809 placements, equivalent to 8% of the 135,000 jobs created in that month, according to Caged (General Register of Employed and Unemployed).

The result proves to be even more frustrating as it refers to a peak month for this model, to meet promotions (such as Black Friday) and the greater movement in commerce and services at the end of the year. In December, the balance was 7,490 placements. In 2023, the accumulated balance in the months of January and February was 5,982 vacancies.

Intermittent, as the name implies, is work without a fixed daily shift. This possibility was included in the CLT (Consolidation of Labor Laws) in 2017 by the labor reform. In this model, the employee does not work a fixed, daily shift. He alternates a period of work (Fridays, Saturdays and Sundays, for example) with others in which he waits to be called.

According to Caged, in November and December, the services and trade sectors were the ones that most used the model. In 2021, according to Rais (Social Information Relationship), intermittents did not reach 1% of the total. Eight out of ten contracts that year were of the more conventional open-ended type.

Lawyer Marcus Chiavegatto, from the Miranda Lima office, considers that there is some difficulty in using it, as management becomes more complicated, leading many companies to have a “foot behind” with the security of these models.

Intermittent is the most flagrant case in this regard. “The provision of services needs to alternate periods without work. Managing this can be complicated depending on the number of employees and the number of days”.

In addition, according to the lawyer, the company cannot make payments on days when that employee is not working. “He maintains that established formal bond. He works and then gets paid for what he does, it’s a very difficult type of management.”

Service sectors, especially those in which there is more fluctuation in demand, such as hotels, restaurants, buffets, nightclubs and equipment related to tourism, in general, tend to be remembered as those in which the intermittent link would be most used.

It ended up not being used that much, because, according to Ricardo Rielo, legal director of the FBHA (Brazilian Federation of Accommodation and Food), the legislation left gaps, making the use of the model unsafe

“There needs to be a provisional measure or another rule that puts an end to doubts”, says Rielo. In his assessment, issues such as inclusion in the health plan and the type of meal ticket to be paid still need to be better explained. “Does it have to be the same as the other employees, even if I go a long period without calling?”, he asks.

In the evaluation of the representative of the tourism sector, a broader regulation would also need to impose parameters for the employee to deny the call for work. The legislation requires the employer to call the worker at least three days in advance.

That worker has one business day to accept or decline. If he doesn’t want to or can’t, it doesn’t affect the status of his contract. “There is no commitment and this demobilizes, it does not encourage this hiring.”

To avoid the risk of needing an employee and not being able to find one, businessmen end up opting, in the high season, such as school holidays, for fixed-term contracts, for, for example, December, January and February. They also use hourly contracts.

The vice-president of Fecomercio-SP, Ivo Dall’Acqua Júnior, defends the intermittent model and says that since its conception it was foreseen that it would adjust better to only some sectors.

Dall’Acqua recalls that the Minister of Labor, Luiz Marinho, shortly after taking office, criticized the contracts created by the 2017 reform and stated that the intermittent type was practically not used. “I wouldn’t say that membership is meager, it’s not very expressive”, says Dall’Acqua. “It’s not the model that didn’t stick, it’s that it exists for a certain type of relationship.”

In addition, the deputy at Fecomercio-SP considers that changes in legislation still take some time to be absorbed.

“It is a type of contract that came to accommodate a series of situations in which there is no permanent need for that workforce. In addition, you bring that worker to social protection, you bring that worker to legality.”

In São Paulo, according to the Union of Commerce Workers, the possibility of contracting through the intermittent model is already provided for in the collective agreement for the category and is used mainly in large retailers and supermarkets to meet days and periods of peak demand.

The potential headache with the intermittent contract is not just for employers. It also demands from the worker a certain type of management that is unnecessary in the conventional contract. This is because the worker needs to make sure that, considering all his employers, he has always reached at least the minimum wage in his wages.

“As a rule, nothing changes in relation to benefits, but you need to see if wages are higher, lower or equal to the minimum wage”, says lawyer Paulo Bacelar, director of IBDP (Brazilian Institute of Social Security Law).

“If the salary is lower because you have a partial contract, the insured person needs to supplement on their own to count as time and quality maintenance.”

That is, if in a given month there is not enough demand to reach the minimum wage (R$ 1,302, until April, and R$ 1,320 from May 2023), the worker will only be considered an INSS insured if he take out of your pocket what is missing.

CONTRACT FOR A DETERMINED TIME

Fixed-term contracts can be used, according to the CLT, in three specific situations: for a probationary period, for activities of a transitory nature and for service whose nature justifies the term (replacing someone, for example).

Experience is the one used at the beginning of relationships with new employees. “It has a specific nature, which is to know the employee.” The legislation provides that this contract can last a maximum of 90 days.

A specificity of the contract by experience is that if it is terminated within the initially foreseen period (30, 60 or 90 days), the employer does not pay the FGTS fine. Monthly payments, however, are mandatory.

Roberto Kurtz, labor partner at Kincaid Mendes Vianna Advogados, says that the cost for the employer is the same in the contract for a fixed or indefinite period, since both demand payments for Social Security and for the FGTS. The difference is in termination.

If the contract ends within the period established when it was signed, the worker will not receive either the FGTS fine or prior notice, as there was no dismissal. On the other hand, if the termination is anticipated, the worker will receive half of the wages to which he would be entitled in the remaining time.

TEMPORARY CONTRACT

There is also the temporary work contract, which needs to be intermediated by a company that is specifically registered as a company in this contract segment. These hirings need to be justified, it is necessary that the reason why the company seeks that workforce is explained: it can be vacations, sick leave, maternity leave or an unpredictable demand, with an unexpected request from a client.

“Apart from that, if these conditions are not met, there is a risk of falling into the intermediation of regular labor, which is prohibited”, says Chiavegatto, from Miranda Lima Advogados.

“It has a time limit and you cannot use it indiscriminately and perennially. It is an exceptional contract with very specific and well-defined rules.” The temporary contract can reach nine months (up to 180 days, extendable for another 90).