PreventingREVENT Labor Liabilities in Mining
Brazilian territory, should pay special attention to the issues involving the relationship between him, the miner, and his respective employees, since from there he can one of the greatest sources of discussions that will be resolved by the Labor Court.
By “labor liabilities” we can conceptualize all amounts due to employees, whether they are formalized, that is, with a work card regularly signed by the Miner, or not, thus considered the “autonomous” professionals or those who services from contracts for the provision of services governed by private law. Still under the nomenclature of “labor liabilities” we can also consider all sectoral charges incidents on payroll, salaries, among the various others provided for in national legislation, as well as the assessments carried out by bodies that such as the INSS, the Labor Public Prosecutor’s Office, among others.
The values that make up the aforementioned “labor liabilities” can reach considerable figures and, in a context of economic crisis, it is natural for companies to seek to find formulas to reduce costs, maintain their margins and competitiveness in the market.
However, the crisis that hits one side usually also hits the other.
At a time when unemployment reaches a considerable share of the population and, at the same time, causes companies not to devote faithful compliance with the rules that regulate the employment relationship, concern about labor liabilities should always be in the crosshairs of the manager who acts in mining projects, since neglecting them may represent the payment of large indemnities, which, at best, can only compromise the positive results built over the period, but, in the worst case scenario, may even compromise the existence of the company itself.
In a framework of economic crisis, on the other hand, there is also a tendency to increase employee layoffs, which could inevitably also make it more likely that each fired employee will seek their rights in the Labor Courts.
Thus, although in the context of crisis there is a tendency to neglect strict compliance with all standards, it is at this same time of crisis that risks with labor liabilities are expanded, which makes the routine of those operating in this area an even more task Delicate.
One of the main measures that should guide the Miner’s activity is an efficient management of the employment contracts of its employees, whether they are hired under the regime of Consolidation of Labor Laws or by service contracts. Service contracts are often disregarded in the Labor Court, causing such employees to be treated as employees by the CLT (Consolidation of Brazilian Labour Law) scheme, even if it has not been so that the links have been formalised. Therefore, the treatment given to one type of hiring should be the same for the other.
With the development of the project and expansion of the number of employees, it can be essential to implement an efficient human resources sector, because it will be decisive in both hiring and layoffs, in addition to monitoring all development relationships within an organization.
As remedying does not solve, the way forward should always be that of prevention.
Within this perspective, it should also be considered essential in the adoption of electronic point control the compliance with the guidelines of Ordinances 373 and 1510 of the Ministry of Labor and Employment, because it is the only reliable system that will eliminate costs with overtime, which can often be considered unnecessary.
We note that the recent Law No. 13,874/2019 made it mandatory to schedule entry and exit times only for establishments with more than 20 (twenty) employees, but by allowing point marking in manual registration, it opened a loophole for erroneous, uniform or invariable records, which labour justice has convinced to name them “British” (the repeated ones) and thus be unenforceable for possible proof in court. Therefore, the safest method of recording the working hours remains the electronic registration through biometric identification, in accordance with the ordinances issued by the Ministry of Labor and Employment.
Documentary management also takes relevance in the implementation phase of a mining project.
The large number of contracts will require the Miner a high organizational capacity, because the documentation of employees, such as EPIs records, reasons for absence of work, medical certificates, point sheets, among others, may be essential if there is any future complaint made before the Labor Court, and it is certain that the absence of certain documents may result in the loss of the Miner’s right to question certain amounts required by the former employee.
From the increase in staff, it should be borne in mind that standardisation is a way to mitigate the risks that may constitute labor liabilities.
In this context, the conclusion of collective bargaining agreements will ensure that all workers in a given category will be subject to the same rules. It is important to keep in mind that collective bargaining agreements also allow greater flexibility of standards that would individually be applied more rigidly, in addition to giving greater legitimacy and ensuring transparency to negotiations.
Rely on a health and occupational safety area (engineers and occupational doctors) will also ensure that the Miner meets the regulatory standards dealing with the work environment, as well as reduce the risks of exposure to dangerousness, unhealthy and occurrence of occupational diseases, besides facilitating the management of the entire system of medicine and safety of the organization’s work.
Perhaps the most important theme and you Miner should have doubts, either about OUTSOURCING, since this is a characteristic of the sector both in the exploratory and mine phase.
With fulcrum in Summa 331 of TST, it was always understood by lawful outsourcing that occurred in the middle activity, such as surveillance, conservation and cleaning activities. And illicit outsourcing that occurred in the end activity of the borrower or in mining and mineral exploration or, even, in the hypotheses in which the structural subordination of the worker with the Miner remained configured.
However, with labor reform Law 13.429/17, we had a real revolution in this aspect, admitting outsourcing and promoting changes to the provisions of law 6,019/74, which deals with temporary work, going to regulate, the employment relationships practiced within companies in general and the provision of services to third parties.
In this sense, the Labor Reform, brought a very broad concept on outsourcing, thus conceptualising it in article 4º- “It is considered to provide services to third parties the transfer made by the contractor of the execution of any of its activities, including its main activity, to the legal entity of private law providing services that has economic capacity compatible with its implementation.”
Therefore, must now admit as permitted outsourcing in end-activity or middle-activity, but it is also a fact that the reform does not authorize, at any time, that outsourcing is used as an instrument of labor intermediation, because this agreement is exceptionally admitted only to temporary employment relationships.
Therefore, the Miner may hire the provision of services with third parties, to perform specific and specific services related to its main activity and to be absolutely lawful outsourcing, provided that there is no personality and direct subordination of third-party employees to the contractor.
But we cannot confuse this current opportunity with the “independent-contractor-only hiring policy”, because we must not forget two important rules : 1) the rehiring of workers who, in the last 18 (eighteen) months, before the validity of law 13,467/17, have provided services to the contracting undertaking as employees or self-employed persons without employment, unless the holders or members of the legal entity governed by private law contracted are retired; and 2) the prohibition of the employee, whose employment contract has been terminated after the duration of the labor reform, returns to provide services to his then employer, on the condition of employee of the service company to third parties, without observing the period of 18 (eighteen) months from his resignation.
We believe that the Courts will still much discuss the new regulations relating to outsourcing, but undoubtedly there has been a breakthrough that will greatly contribute to the mineral development of the country
Finally, but not least relevant, having a partner in the legal area since the beginning of the implementation of the project will ensure that the miner is always up to date in relation to frequent changes in the legislative scenario, which may have repercussions on the directly in the relationship that the miner established with its employees and, consequently, modify the risks initially anticipated.
Workers are increasingly aware of their rights and, relying on a partner in the legal area, may make the relationship between the miner and his employees supported by the most current legislation on a given subject, making it more ethics and transparent.
It is of paramount importance that this legal partner has direct communication with the HR sector of the organization, providing the necessary consulting to the day-to-day sector, always aiming to prevent the occurrence of situations that may give rise to future disputes.
In addition, all these agents should always act in the dissemination of a culture that values health and safety at work, promoting frequent dialogues with their employees and aimed at constantly improving working conditions, which, in ultimately, they will be the ones that will determine the success or failure of a mining market organization.
This Article of: LUIS MAURÍCIOAZEVEDO (OAB 80412 RJ) and CHRISTIANO W. GUALBERTO (OAB 116209 RJ) and is owned by FFA LEGAL and directed to its customers and partners.
Decree-Law No. 5,452/43 – approves the Consolidation of Labor Laws.