STF denies employment relationship to app driver – 05/24/2023 – Market

Minister Alexandre de Moraes, of the STF (Federal Supreme Court), responded to the request for a transport application and revoked the decision of the TRT-3 (Regional Labor Court of the 3rd Region), of Minas Gerais, which had determined the recognition of a bond of a driver job.

The decision was published on Tuesday (23) and determines that the process be forwarded to the Common Court. For Moraes,, the relationship between the driver and the application “is most similar” to the conditions provided for in Law 11,442/2007, of the self-employed transporter. These freight drivers are the owners, partners or tenants of the vehicle used at work.

The STF minister also considered that the TRT-3 decision, by declaring the existence of an employment relationship, ignored cases already analyzed by the Supreme Court and that validated the existence of other types of legal relationships other than employment.

In the opinion of lawyer Luiz Antonio dos Santos Junior, partner in the labor area at the Veirano office, one of the most important points of the decision is precisely the understanding that there is a new type of relationship between driver and application.

“Of course, it’s just a minister’s decision yet, but we have a history of recent decisions, such as outsourcing, transporters, commercial representatives, salons, all validating other forms of civil relationship, of a commercial nature”, he says.

The process that reached the STF is a complaint. Cabify, a company that had been sued by a driver, defended in the appeal that the decision of the Minas Gerais court ignored the Court’s understanding of the validity of outsourcing.

In the appeal taken to the Supreme Court, the application’s defense defended that the judgment “established the thesis in the sense of admitting other forms of civil hiring, different from the employment relationship”. Cabify no longer operates in Brazil since mid-2021, when, during the pandemic, it announced the decision to end service in the country.

Complaints are not taken to classes. This case, therefore, will not go through other ministers. Santos Junior, from Veirano, considers that the driver may try to provoke a new decision in the Supreme Court, but the tendency is for the discussion to be closed.

If he wants to continue discussing other points of the relationship with the application in the Common Court, he can, but no longer the formal employment relationship. “He will be able to discuss the contractual relationship, other matters of the civil relationship.”

The request for an employment relationship had been denied at the 31st Labor Court of Belo Horizonte in April 2022. In June of the same year, the 11th Panel of the TRT-3 determined, by majority vote, the recognition of the relationship.

For judge Juliana Vignoli Cordeiro, rapporteur for the case at the regional court, the driver who uses the application is submissive to orders on how to carry out the work provided, which indicates subordination, one of the elements that characterize the employment relationship.

The request for an employment relationship had been denied at the 31st Labor Court of Belo Horizonte in April 2022. In June of the same year, the 11th Panel of the TRT-3 determined, by majority vote, the recognition of the relationship.

For judge Juliana Vignoli Cordeiro, rapporteur for the case at the regional court, the driver who uses the application is submissive to orders on how to carry out the work provided, which indicates subordination, one of the elements that characterize the employment relationship.

The federal government is currently discussing regulatory parameters for the service provided by drivers and couriers who use apps to work in a working group.

The main companies in the sector admit the inclusion of a contribution that finances the Social Security of these works, but that keep the characterization of employment relationship prohibited.