Much has been said recently about the latest Supreme Federal Court (STF) decisions related to employment relationships. However, this topic is still quite controversial.
The discussion began in 2020 with the judgment of the Direct Action of Constitutionality nº 48 by the STF, which declared the Law 11.442/2007, the one that regulates autonomous cargo transporters, to be constitutional. It was decided that, if the requirements of the law are met, the commercial relationship will have a civil nature and there will be no employment relationship.
In this context, one of the main labor lawsuits involving the discussion of the employment relationship between app drivers and the Cabify travel platform was Claim Action nº 59.795, ruled by the STF.
In that case, Cabify argued that "the driver can decide when and if he will provide his transportation service to the users of the Cabify app, without any minimum work requirement, number of trips, billing, supervision, nor punishment for the driver's decision". Minister Alexandre de Moraes’ decision was in the same direction of these lines, based on the fact that the relationship established between the app driver and the platform is closer to that of a self-employed carrier, who has a commercial relationship.
In this sense, it has also been decided that the drivers who use the Uber app to pick up passengers are not obliged to provide services habitually and, in fact, the drivers must assume all the risks inherent to the business, so there is no employment relationship between them and the company.
Decisions have also been taken in cases involving employment relationships between former franchisees and the franchising company (Claim Action nº 58.333); drivers and the transportation app company (Claim Action nº 59.795); hairdressers and beauty salons (Direct Action of Inconstitutionality nº 5.625); and the hiring of freelance professionals. Therefore, it can be seen that the STF has ruled that alternative forms of work are possible, in addition to the typical employment relationship governed by the CLT.
In regard to labor jurisprudence, more precisely the 4th Panel of the Superior Labor Court (TST) has already ruled that there is no employment relationship between a driver and a transportation app company.
The request for recognition of the relationship was dismissed at first instance by the Regional Labor Court (TRT) of the 12th Region, and now by the 4th Panel of the TST. The reasoning behind the decisions is that there is no legal subordination between the driver and the company, since the driver's autonomy has been demonstrated, and the relationship is closer to a civil partnership. The rapporteur, Minister Ives Gandra Martins, drew attention to the emergence of new forms of work, including the use of technology, which are deeply transforming the labor law, but which do not yet have specific regulations, and for this reason it is necessary to distinguish them from cases of fraud in the employment relationship.
The discussion of the employment relationship of app drivers is quite controversial within the TST itself. The 4th, 5th and 8th Panels have already ruled against recognizing the employment relationship, while the 3rd Panel has recognized the fulfillment of the requirements to declare an employment relationship between the parties. For this reason, the matter is being examined by Subseção I Especializada em Dissídios Individuais (SDI-1), responsible for standardizing the case law of the Court's Panels.
It is also important to draw attention to the fact that in lower courts, the majority of case law is still in the direction of declaring the employment relationship between the travel platforms and the drivers. The main grounds for declaring the employment relationships are that, according to magistrate Átila da Sold Roesler of the 28th Labor Court of Porto Alegre, "if the employment relationship has evolved in recent decades, the analysis can also be reconstructed based on the principles of Labor Law". In this sense, the magistrate re-read the requirements for establishing the employment relationship "so that there is no unbridled exploitation of labor without any legal protection".
These are new issues that are still quite controversial in the judiciary, but every day new thesis are being created in the sense of accepting other types of employment relationships, especially by the STF.
Despite the Supreme Court's recent decisions, companies should be aware of hirings that deviate from the “celetista” standard. The peculiarities of each case and the reality that will be experienced between the parties should be analyzed so that the correct framework for the relationship can be established.