Superior Labor Court validates an intermittent employment agreement

On August 09th, 2019, the 04th Panel of the Superior Labor Court published a final Court decision which validated an employment agreement which enables the rendering of services in an intermittent fashion, in accordance with the company’s needs.

In the case at hand, the claimant was hired in November of 2017 to render his services in intermittently, based on the new modality of employment agreement established by Law n. 13.467/2017, also known as the Labor Reform. In the labor lawsuit, the employee demanded the recognition of his employment contract as a regular contract for the continuous rendering of services. His claims were conceded by the Regional Labor Court of the 3rd Region, based on the assertion that intermittent work regimes should only be done in an exceptional manner in order to meet intermittent demands of small companies.

The decision emitted by the 4th Chamber of the Superior Labor Court reformed the Regional Labor Court, denying the claimant’s demand for his contract to be considered as established for the regular and continuous rendering of services for an undertermined period, with full payment of salary for the whole worked period. It should be emphasized that the assistant was hired in November of 2017, already under the effectiveness of the Labor Reform. Therefore, the Panel concluded that the employer fulfilled the legal requisites of intermittent employment.

In this sense, the law defines and establishes parameters of the intermittent employment agreement as one that is discontinuous and can be applied to any activity, except to aeronauts, provided that the value of the hourly salary of the company’s non- intermittent employees is observed.

Furthermore, article 452-A determines that the intermittent contract should be executed in writing and specifically contain the value of the hourly salary, which cannot be lower than the value of the minimum salary or the value of the hourly salary paid to the other employees of the establishment  in the same position. 

According to Minister Ives Gandra Martins Filho, the Regional Labor Court, when invalidating the intermittent employment agreement, created parameters and limitations not established by the CLT. The minister argues that the regulation of intermittent labor in the Brazilian legal system was due to the need to confer basic rights to a multitude of workers that were in an informal work situation..

Lastly, the decision of the Superior Labor Court rejects the interpretation that work in an intermittent regime may only be done under exceptional circumstances, validating the usage of this contractual modality for services which present a discontinuous nature and with the alternation of periods of work and inactivity in any kind of activity, presuming that it is not used to supply a permanent, continuous or regular work demand.

Should you have any doubts, please do not hesitate to contact SAEKI ADVOGADOS.