Following our series on the Infralegal Labor Regulatory Framework, we discuss in this article its impacts on the situation of employees hired or transferred to provide services abroad, in accordance with the provisions of paragraph 2 of Art. 5, art. 9 and art. 12 of Law 7,064/82.

Initially, this law had limited application to cases of expatriation of employees of companies providing engineering and related services. However, with Law 11,962/09, its application was expanded to all sectors of the economy, aligning its determinations with the predominant understanding of Brazilian case law until then.

Currently, Law 7,064/82 regulates the situation of all employees who were:

• removed to work abroad and whose agreements were being executed in Brazil;
• transferred to a company based abroad to work abroad, provided that the employment relationship with the Brazilian employer is maintained; and
• hired by a company based in Brazil to work at its service abroad, except for the employee designated to provide services of a transitional nature for up to 90 days who has express knowledge of the transience and receive, in addition to the round trip, daily during the period of work abroad.

Law 7,064/82 establishes that the company responsible for the employment agreement of the employee transferred abroad must assure him, regardless of the compliance with the legislation of the place the services are executed, the rights provided for therein and the application of Brazilian labor and employment laws, if more favorable to the employee when compared to the laws of the place of provision of the services, taking into account the set of standards and each subject. Thus, Law 7,064/82 guarantees a number of rights to employees hired or transferred to provide services abroad.

Up to the Infralegal Labor Regulatory Framework, Decree 89,339/84 was responsible for regulating the Law 7,064/82.

This decree, however, was repealed by Decree 10,854/21, which regulates the subject in the same terms as Decree 89.339/84, only with language changes, without substantial changes.

One of the changes brought by the Infralegal Labor Regulatory Framework concerns the procedure for authorizing the hiring of the employee by a foreign company. Article 12 of Law 7,064/1982 determines that the hiring of workers by a foreign company to provide services abroad is conditional on the authorization of the Ministry of Labor. Decree 10,854/21 replaced Decree 89,339/84 to regulate, in the same terms, the authorization of hiring a worker by foreign company to work abroad. The two decrees delegate the act of regulating the application for authorisation to the Minister of Labor.

With the Infralegal Labor Regulatory Framework, the hiring authorization, which was regulated by Ordinance 21/06 of the Ministry of Labor and Employment, is now regulated by Ordinance 671/21 of the Ministry of Labor and Social Security. The subject, however, has also not been substantially changed.

Ordinance 21/06, for example, used to establish that the application for authorization should be formulated to the General Coordination of Immigration, while Ordinance 671/21 requires that the application to be forwarded to the Subsecretariat of Labor Relations of the Labor Secretariat of the Ministry of Labor and Social Security, via the Internet.

In general, therefore, we do not identify significant impacts that require review of expatriation practices currently adopted by companies. But it is important to be mindful of the normative changes and peculiarities related to the provision of services abroad so that the practices adopted by companies are always in accordance with applicable standards.

We will continue to publish, in the coming weeks, articles with the objective of exploring, in a simple and practical way, the main changes brought by the decree, ordinances and normative instructions, and clarify ing the main impacts of the regulatory framework for companies.

Click here to read the other articles in the series.