One of the greatest labor challenges facing the Brazilian business community today is compliance with the minimum quotas for the hiring of apprentices and people with disabilities or rehabilitated workers.
Under Brazilian law, to meet their minimum quota, companies are required to employ a number equivalent to:
- at least 5% (and, at most, 15%) of apprentices, a percentage calculated over the total number of employees in each establishment, as long their duties require professional training; and
- from 2 to 5% of rehabilitated or disabled employees, calculated over the total number of employees of the company throughout Brazil.
The goal of the legislator in creating such obligations was to enforce the social function of companies and to provide effective means for the proper integration, inclusion, and vocational training of young people and persons with disabilities. However, the collective repercussions of noncompliance with these obligations are often very burdensome for companies.
This is because, in addition to the possibility of fines and the application of large penalties by the Ministry of Labor, companies that do not meet the minimum hiring percentages are also subject to the intervention of the Public Labor Prosecutor's Office (MPT).
The intervention of this agency, in turn, usually results in the filing of a public civil action or the signing of a consent order, pursuant to which companies, under penalty of imposition of additional fines, undertake to comply with the quotas for apprentices and people with disabilities.
This scenario is even more sensitive for companies that, due to their economic activity, do not have positions or sectors in their structure that allow for the absorption of the minimum number of apprentices or disabled persons, as required by the legislation. This is because, although some positions require specific skills, competencies, or training, often incompatible with apprenticeships and/or physical and intellectual limitations, they will still be considered for quota enforcement purposes.
In this context, the intervention of the Ministry of Labor and the MPT has been recurrent in recent years, given the real difficulties faced by companies in achieving minimum hiring percentages, either due to the peculiarities of their economic activity or the lack of trained professionals or persons interested in occupying such positions.
Given this scenario, some professional and economic categories have included, in their collective rules, specific provisions to address the particularities of their economic activity, thus easing the rules in order to comply with legal quotas.
This easing generally occurs through a recognition of the incompatibility of a given position with its occupation by employees without proper training or specific ability or full physical or intellectual ability to hold it.
Once this incompatibility is recognized, such positions are excluded from the calculation basis for the legal quota, thus reducing the minimum number of places to be allocated to apprentices or persons with disabilities.
The legal validity of this adjustment at the collective level was the subject of various debates in the Judiciary, which, in turn, reacted by adopting contradictory positions, sometimes recognizing its legality, sometimes ruling it out.
However, shortly before the enactment of Federal Law No. 13,467/2017 (the Labor Reform), this subject was meticulously examined by the Section Specialized in Collective Bargaining of the Superior Labor Court (TST). On that occasion, the section upheld the validity of a provision in a Collective Labor Agreement (CCT) entered into between the unions of the companies and workers of private security of Tocantins, which restricted the calculation basis of disabled employees to only the employees in the administrative areas, excluding, therefore, the security guards themselves:
"ORDINARY APPEAL - ANNULMENT SUIT - SECTION 16 - HIRING OF CARRIER OF PHYSICAL DEFICIENCY QUALIFIED OR REHABILITATED - SECURITY SERVICE.
A collective bargaining provision that changes the calculation basis for the legal reserve of vacancies for persons with disabilities (article 93 of Law No. 8,213/1991) is valid for positions compatible with their abilities, in accordance with the reality of the industry. Deference to the autonomous instrument, pursuant to article 7, XXVI, of the Federal Constitution. Ordinary Appeal heard and not granted relief.”
(Case No. 76-64.2016.5.10.0000, Reporting Judge: Maria Cristina Irigoyen Peduzzi, Date of decision: March 13, 2017, Subsection I Specialized in Individual Disputes, Publication Date: April 11, 2017).
In sum, the TST’s decision was based on two main grounds:
- The incompatibility between the hiring of persons with disabilities and the particularities of the category of security guards, which requires: (i) a professional training course, which includes personal defense, weapons, and shooting, among others; and (ii) passing examinations attesting to the guard’s physical health and mental and psychological and technical capacity;
- The prevalence of collective bargaining over general labor rules, since they may more precisely and adequately reflect the particularities of each professional category.
However, a few months after this decision, the subject again gained prominence with the entrance into force of the Labor Reform, which recognized the prevalence of that which is negotiated over that which is legislated, except for the topics protected at the constitutional level.
Although one could take the position that collective bargaining on this issue would be strengthened by the Labor Reform, the discussion returned to the spotlight. Also based on the new law, the MPT went on to argue that the quotas for apprentices and people with disabilities could not be subject to an agreement in collective rules.
Contrary to what one might imagine, the expectation is that this controversy may not take that long to be reviewed. This is because the subject is already pending the TST’s review since, on August 29, 2018, the MPT filed a suit for declaratory relief in order to nullify a collective bargaining provision, assigned the case No. 1000639-49.2018.5.00.0000.
The purpose of the proceeding is annulment of the provisions of the CCT signed between the National Union of Airline Companies (SNEA) and the National Union of Aeronauts (SNA), which exclude pilots, flight attendants and flight mechanics from the calculation basis for the minimum quotas for hiring apprentices and disabled or rehabilitated people.
According to the MPT, the legislation on the subject is governed by public policy rules, which cannot be subject to collective bargaining with a view to a reduction of rights, not least because they are protected by the exceptions of article 611-B of the Consolidated Labor Laws, subsections XXII, XXIII, and XIV.[1]
On the other hand, trade unions defend their position under the same arguments that have been accepted by TST in the past, such that the court will have a new opportunity to review the prevalence of the collective rule over the legislation, as well as the incompatibility of certain positions with the legal quotas.
In a superficial analysis of the controversy, the reporting judge in the case, Justice Katia Magalhaes Arruda, considered that the contested provisions apparently violated cogent state norms, whose easing through collective bargaining was supposedly inviable.
However, before considering the petition for preliminary injunctive relief submitted by the MPT, the parties were summoned to a prior justification hearing in order to clarify the controversies presented in the claim.
The hearing was held on October 30, 2018, at which time the Justice pointed out that the case law of the TST supposedly included in the calculation basis also employees allocated in positions that require technical training and physical and intellectual fitness.
She also pointed out that other professional categories with similar problems, such as security guards, used alternative means of meeting the quota, such as the signing of partnerships with host houses, public agencies, and vocational training institutions.
In this scenario, the justice proposed that the trade unions meet with the employees and the companies they represent to study the possibility of excluding the provisions in question from the next CCT, such that the parties agreed to hold a new hearing on November 21.
On this opportunity, the trade unions ratified their understanding about the legality of the CCT and the Justice suspended the suit for 90 more days for the parties to attempt to conciliate.
In case there is no agreement, it is expected that the TST will have a new opportunity to review the controversy surrounding the validity of normative provisions that ease the form of fulfillment of the quotas, especially in light of the changes promoted by the Labor Reform.
In order to do so, it will have to face issues that are sensitive for both sides, such as the social function of companies, the prevalence of that which is negotiated over that which is legislated, the incompatibility of certain activities with the hiring of apprentices and the disabled and the possibility of fulfilling these obligations by alternative means.
However, regardless of the position to be adopted by the TST, the new decision should radiate to all other professional categories that face equal difficulty, marking the limits of collective bargaining to be initiated in the coming years.
[1] Article 611-B. The suppression or reduction of exclusively the following rights constitutes unlawful subjects of a collective agreement or collective bargaining instrument:
XXII - prohibition of any discrimination regarding salary and hiring criteria for disabled workers;
XXIII - prohibition on night work, dangerous, or unhealthy for minors under eighteen years of age and any work for minors under the age of sixteen, except as an apprentice, from the age of fourteen;
XXIV - measures for the legal protection of children and adolescents;
