The objective of this article is to verify if, in the current legal system of Brazilian trade unions, drivers using digital platforms, in this study, the company Uber, can carry out collective bargaining with such companies. In order for it to be achieved, it is important to analyze, as a premise of this legal possibility, the Brazilian trade union structure, as well as the legality of the legal business, based on the civil legislation, focusing on the definition of the “capable agent”.

In fact, only the legally recognized trade union entity is capable of negotiating a collective instrument that fall within the Brazilian legal sphere, as legal and legitimate. It is, and only it, the “capable agent” of civil law.

Brazilian Trade Union Structure:

Brazilian trade union structure derives from a 1930s legislation, later consolidated in the CLT (Labor Law Code) through Decree 5452/1943, which establishes union unity by economic and professional categories, without any significant structure changes since then.

The Federal Constitution of 1988 (CF/88) maintained the system of union unity in its article 8, item II: “… the creation of more than one trade union organization, to any degree, representative of a professional or economic category, in the same territorial basis, is prohibited…”, but tried to give some freedom to trade union entities be created by establishing their free creation with only the registration in competent bodies, today, the Civil Registry of Legal Entities Office.

According to article 8, in verbis:

“Art. 8 The professional or trade union association is free, observing the following:

I – the law may not require authorization from the State for the foundation of a trade union, except for registration with the competent body, the Government is prohibited to interfere and intervene in the trade union organization;”

It is important to emphasize that, in view of the absence of regulations that allow the assessment of the union representativeness and legality in the Brazilian union unity system, except for the simple legal existence of such entity; considering that the affiliation and representation of the worker or employer by a union is imposed by law, the Federal Supreme Court (STF) issued the summary 677 determining that it would be up to the Ministry of Labor to control the registration of such entities, as a way of guaranteeing the preservation of union unity.

Summary 677/STF – 10/09/2003. Union. Unity Principle. Registration of trade union entities. Ministry of Labor. CF/88, Art, 8, I and II.

“Until the law provides for this, it is incumbent upon the Ministry of Labor to register the trade unions and to ensure the observance of the principle of unity”

Thus, the trade unity registered in the Ministry of Labor is legal.

In spite of such “control and preservation of union unity”, in 2001, the IBGE established the existence of 15,961 (fifteen thousand, nine hundred and sixty-one) unions, of which 11,347 (eleven thousand, three hundred and forty-seven) were registered, and 4,614 (four thousand, six hundred and fourteen) were without registration.

There are, currently, 16,908 (sixteen thousand, nine hundred and eight) unions registered in the MTE, among professionals (11,613) and employers (5,295).

As a consequence, today, the legal landscape in Brazil is that of union unity by economic and professional category, with maximum territorial base defined in law, depending on the trade union entity, and not a simple affiliation, of registration in the Ministry of Labor, currently under MP 870 (article 37, VI), and, until it is in force, by the Ministry of Justice.

Article 511 of the CLT provides the exact definition of each category - economic and professional, with no other system of union representation under penalty of illegality, and consequent illegitimacy of representation.

Art. 511. An association for the purpose of studying, defending and coordinating their economic or professional interests is permitted for all those who, as employers, employees, agents or self-employed or liberal professionals, carry out, respectively, the same activity or profession or activities or similar or related professions.

§ 1 The solidarity of economic interests of those who undertake equal, similar or related activities constitutes the basic social bond that is called economic category.

§ 2 Similitude of living conditions arising from the profession or work in common, employment situation in the same, similar, or related activities, composes the elementary social expression understood as a professional category.

§ 3 A differentiated professional category is that which is formed of employees who carry out different professions or functions by virtue of special professional status or as a consequence of singular living conditions.

§ 4 Identity, similarity or connectedness boundaries set the dimensions within which the economic or professional category is homogeneous and the association is natural.

Therefore, it is not enough to create a trade union entity, as the constitutional rule says, it is necessary that it falls within these legal terms of category definition and has such legality recognized by registration in the Ministry of labor, and even if such registration respects the law.

In summary, we can clearly say that Brazil does not have a union structure free of governmental authorization, nor allows free association of employers and workers, except through economic and professional categories with a rigid definition in law.

Lawful Business Legality

Civil law has always had application to verify the legitimacy of a legal or physical person, to establish a legal business. In fact, when assessing whether a union had a registration with the Ministry of Labor, and consequently had legitimacy of representation, it was only applied the “capable agent” civil rule.

Ratifying this rule, which has always existed for any legal business, the CLT was amended by the so called “labor reform” (Article 8, § 3), so that collective instruments could be analyzed only on the basis of Article 104 of the Civil Code, which deals with the legitimacy of the legal business.

As if such a rule had not existed before, and also, as if such a rule would restrict the analysis by the Judiciary… Did they pay attention to the element “illicit object”?

Finally, we are not going to make any consideration about the lawfulness of the negotiating objects, since it is not the object of this article, and we are going to focus merely on the legitimacy of the party, that is, the examination of the “capable agent” in possible negotiations between the drivers who use the digital platform with end users and the operators of those platforms.

It is an essential element, from a legal point of view, for a negotiation to be possible.

In order to do so, we will consider as “capable agent” of such negotiation, in compliance with article 104of the Civil Code, the trade union entity recognized by law, and in compliance with the strict legal terms defining the economic and professional categories.

Considering this legal scenario, we enter the theme of this article, which will be restricted to drivers only, not other workers of other digital platforms that exist nowadays.

Collective Instruments and drivers using digital platforms

Collective Agreements (ACT) and Collective Conventions (CCT) are collective instruments. The first one is signed between a Company and one or more professional trade union entities, and the latter between trade unions of an economic and professional category.

In this article, when we refer to collective instruments, we will refer to both possibilities indistinctly. And we will use the technical names in acronyms (ACT or CCT) when we refer to each separately.

As seen above, the legality of collective instruments depends on the capable agent, and capable agent, from the professional union point of view, will be the one who represents the workers following the legal guidelines.

And, who such workers are? Analyzing Brazilian legislation, it is verified that the professional union organization represents only the employees. Thus, the union entity which represents autonomous agents is an employer’s entity, depending on the economic category of such agent – commerce, services, law, engineering or others.

Therefore, by law, a trade union entity does not represent mere workers, but so and only when such workers work under the employment contract in their strict sense, as it can be understood from the description of the professional category contained in paragraph 2 of CLT’s article 511, as mentioned above: “Similitude of living conditions arising from the profession or work in common, employment situation in the same economic activity…” (emphasis added)

This definition is indicated by Jose Carlos Arouca: (original emphasis)

“6. Professional and business organization. Categorical or group qualification is a rule for business activities, and is, professional, exceptionally, for the occupation.

(…)

The professional category is the set of employees that activate in the same economic activity or in similar ones, united by the work in common. Economic activity, in turn, is an expression of solidarity as a function of the economic interests of those who undertake similar or related activities. It can be said, therefore, that the basic constitution is normally based on economic activity and exceptionally in the occupation, from those that are differentiated by being governed by professional statute or special particularities, having as minimum limit the area of a municipality.”

It is so true that only employees are represented by professional entities, which the author himself, in the same book, when dealing with a union of retired workers, concludes:

“Taking into account what can be extracted from the item VII of article 8 of the Constitution, the retired person only has place in the entity to which has affiliated while being linked to a job. This reasoning necessarily leads to the conclusion that the existed retirees’ unions are left on the fringes of the trade union organization, guaranteed by the article 561 of the CLT, which reserves the word union to organizations as such recognized. It means that they do not have the prerogative to defend individual or collective rights and interests before administrative and judicial bodies, to establish through general meeting, confederation contribution.”

And he concludes: “They are like that, simple civil associations.”

Therefore, the legal guidelines to verify the possibility and validity of a collective instrument signed between drivers and the company Uber valid is:

1. That the Uber’s employees’ union has legal existence, either as a dominant or as a differentiated category;

2. That such a Union represents employees who are employed by the company Uber;

3. That the collective instruments comply with the legal validity requirements of the legal business.

The first step is to verify the economic category of the company Uber, which can be done through the analysis of the main economic activity, ascertained by its tax registration, more precisely at CNAE.

And the analysis of Uber’s tax registration, brings us the following data: (our bold)

REGISTRATION AND STATUS REPORT

REGISTRATION NUMBER: 17.895.646/0001-87

HEADQUARTER

OPENING DATE: 04/09/2013

BUSINESS NAME: UBER DO BRASIL TECNOLOGIA LTDA.

MAIN ECONOMIC ACTIVITY CODE AND DESCRIPTION:

74.90-1-04 – Intermediary and agency activities of services and businesses in general, except real estate.

Therefore, the employer’s Union that represents Uber will be the one that, by virtue of law, represents the economic activity indicated there. And the professional Union will be the one which represents the employees of this economic category, unless there is a differentiated category.

Note that, in our legislation, the employee does not join a Union. It is the employer that does it. The company is registered in the professional Union, with its data, and then the employees are, automatically, affiliated to such a Union.

Thus, the Uber’s administrative employees will be enrolled in the professional Union that represents the employees in its economic category, but not the drivers, as they do not maintain employment relationship with the company.

However, our intention at this moment is not to verify the possibility of union framing Uber’s drivers in some specific union or not, as we have already done it in another article, and we concluded that it is impossible to set them for a specific union, because nothing differentiate them from any other type of driver, as the activation way does not make any difference to the driver’s profession.

Based on the hypothetical assumption of the existence of a union representing them, such drivers should be recognized as employees of Uber so that any collective bargaining could be enforced.

It is, precisely, because our union system is flawed and only contemplates employees and not workers in general.

As mentioned above, considering our legal system, as Professor Arouca concludes, the Union represents employees while maintaining employment relation. Outside it, even if the entity calls itself “union”, it will be, for legal effect, mere association, without any bargaining power as a trade union entity. It will not be a capable agent as says the article 104 of the Civil Code, to initiate collective negotiations of work.

So, even if one is created, as entities called app workers’ union has already been created, or drivers of app, or any other entity denominated union, in fact they will be simply associations, that will be able to represent their associates in some negotiations, but they will not have trade union representation, they will not represent the professional category erga omnes, and may not even require that Uber participate in any negotiation.

Therefore, we can conclude that there is no legal provision for drivers using Uber’s app to require collective bargaining with the company, and if, possibly, any negotiation occurs, for mere corporate liberality, it will be a non-union negotiation of a company with an association, having civil effect, limited to the associates of the said entity, even if it is called “union”.

All this situation shows us the urgent need to change the Federal Constitution in order to generate true freedom of association in Brazil, allowing any form of union association of employees, workers of any nature and even companies, in order to generate full freedom of negotiations, which will certainly strengthen Brazilian trade unionism, now pulverized in thousands of union organizations, many of which are not representative.

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1. Labor Code

2. Federal Constitution

3. IPEA: Trade Union in Brazil: What to expect in a near future?

Clique aqui

4. Mediator System – MTE: clique aqui

5. TRT 9th Region RT 0011359-34.2016.5.03.0112

6. TRT 2nd Region RT 1001574-25.2016.5.02.0026

7. Clique aqui

8. Arouca, José Carlos – Trade Union Law Basic Course, 2nd edition Ltr, SP 2009

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*Maria Lucia Ciampa Benhame Puglisi is labor and Union Lawyer at Benhame Sociedade de Advogados, graduated in 1987 and post-graduated in Labor Law and Social Security by USP Law School, she has an extension course in Business Union Leadership and Personnel Management and Labor Compliance by FGV Law School.