2.1 What is the 4th Industrial Revolution?

In Kalus Schwab's¹⁰ concept, “The word revolution denotes abrupt and radical change. And in our history, revolutions have occurred when new technologies and new ways of perceiving the world trigger a profound change in social structures and economic systems. Since history is used as a reference, changes can take years to unfold. ”

Society has gone through three previous revolutions¹¹. The first occurred when the human workforce began to be replaced by a mechanical force with the invention of the steam engine. The second revolution came with the insertion of electricity into the assembly lines, enabling mass production. The third is the so-called “digital or computer revolution,” triggered by the development of supercomputer computing, personal computing, and the internet.

According to the same author, the fourth industrial revolution “begins at the turn of the century and is based on the digital revolution. It is characterized by a more ubiquitous and mobile internet, smaller and more powerful sensors that have become cheaper, and artificial intelligence and automatic learning (or machine learning).”

Schwab¹² shows a list of new technologies that organizations have nominated as drivers of the 4^th Industrial Revolution, and selects those indicated in research by the World Economic Forum and in the work of several Global Agenda Councils. According to him, "all innovations and technologies have one feature in common: they take advantage of the spreading capacity of digitizing and information technology."

The author then divides them into physical categories (autonomous vehicles, 3D printing, advanced robotics, new materials), digital (internet of things - described in its simplest form as the “relationship among things, (products, services, places, etc.) and the people made possible through various connected platforms and technologies (…) smartphones, tablets, computers connected to the internet.” Also remembering the blockchain and cryptocurrencies… The internet of things connects them and allows them to real-time tracking, impacting, for example, on the logistics and transportation activity (and even, we may say, on the working hours control of the professionals involved in their transportation. Finally, the biological category, indicating that “the innovations in the field of biology - particularly genetics - are breathtaking (…) It took more than ten years, at a cost of US$2.7 billion to complete the human genome project. Today a genome can be sequenced in a few hours and for less than a thousand dollars. "

All these invocations will sooner or later have an impact on our daily lives, and it is up to society to be prepared for it, including within the framework of labor relations and collective labor relations.

Collective relations (not necessarily union) will be essential in the new order of the 4^th Industrial Revolution, which – by privileging the digital, data processing and intelligent algorithm – can create a situation of human discredit.

Harari¹³ poses as essential questions at the end of his book Homo Deus:

1. Are organisms just algorithms, and life just data processing?

2. Which is more valuable - intelligence or consciousness?

3. What will happen to society, politicians, and everyday life when unconscious but highly intelligent algorithms know us better than we do?

Paradoxical as it may seem, the growing importance of the individual will compel the growth of the collective as a force for the recognition of rights, and therefore a collective structure within the framework of labor relations that is truly representative of their group.

2.2 Labor relations and the 4^th Revolution - structural changes?

Labor relations are in structural and even conceptual change in several parts of the world.

These new tools not only create digital platforms, which are very much in vogue, but allow changes in working relationships, including in industries. In the 4^th Revolution, innovations allow the replacement of labor by more efficient systems, which generates demand for intellectual capital and investors. That is, most workers who perform repetitive and mechanized activities are at great risk of being replaced by innovations, machines or computerized systems that speed up such activities or even completely replace such workers.

Schwab¹⁴ points out that the question the worker has to ask is not, "Is there going to be a break in my company?", But "When will the break occur, how long will it take and how will it affect me and my organization?"

Many professions, different activities and many jobs disappeared in the course of the development of economic activities in previous revolutions. Desk operators, for example, today almost do not exist anymore.

Similarly, many current professions and activities will also cease to exist, causing the end of the known employment and work structure. And while some of these workers will adapt to new roles and jobs, many will have to look for other forms of work than those traditionally known.

Schwab wonders¹⁵: “Is this the beginning of a flexible work revolution that will empower any individual with an internet connection and eliminate the skills shortage? Or will it trigger the beginning of a relentless race to the bottom in a world of unregulated virtual factories?.”

Antonio Carlos de Aguiar^16,, in his book Labor Law 2.0, correctly shows that the revolution “goes far beyond the use of robotics as a means of replacing manpower. Change is cultural and structural in the way it operates and moves in this Virtual World, which replaces economic models of corporate constitution and business, as well as how they work and get hired (from where, how and for whom to provide services)."

In the same chapter, he says when dealing with the so-called “uberization”: “A good example of this installed digital revolution is Uber, which, importantly, is not a car rental company. It is only a digital platform; a software tool. That's right. It, the Uber company, does not own any of the cars that serve its customers. This 'simple fact', however, does not prevent it from being considered as the largest taxi company in the world.”

How then, in the Brazilian system, is the working relationship of the drivers of the company Uber and others in the same model with the drivers analyzed? Is the relationship a working one? Is it a business partnership? Is there a real autonomy in the performance of such professionals?

The matter has been addressed in different judicial decisions in Brazil, but before analyzing them, it is necessary to demonstrate what Brazilian law considers as an employee:

Article 3 of the CLT states: Article 3 - Employees are considered as individuals who provide services of a non-eventual nature to an employer, under its dependence and through salary.

Thus, considering Brazilian law, essential elements to the employment relationship are:

a) The personality

b) The legal subordination

c) The non eventuality

d) The onerousness - pecuniary consideration by the service taker

The relationship of professionals who use digital platforms has peculiarities that move between the autonomous relationship and the employment relationship.

In this paper, we are not going to analyze this relationship in detail, but only to demonstrate the legal uncertainty that hangs over it, since it may not fit into any working relationship provided for in our legal system (without even considering whether it would need to be provided for), since the purpose is to analyze it in the face of union relations. However, as will be seen later, the type of individual relationship between the platform user and the platform itself impacts on trade union relations that currently exist in Brazil.

We found sentences that, analyzing the factual relationship between the platform user and the rules to which they are submitted, there comes an employment relationship:

Sentence of the 33^rd Labor Court of Belo Horizonte¹⁷: This paper examines the so-called “uberization” of labor relations, a phenomenon that describes the emergence of a new pattern of work organization based on advances in technology. Thus, the present conflict must be understood according to the contemporary features that mark the use of disruptive technologies in the unfolding of the capital-labor relationship.

In the same sentence, after analyzing the history of productive evolution, since Fordism, Toyotism, outsourcing, it recognized in the new system (digital revolution) only another form of “extraction and appropriation of labor that produces goods and services” and, therefore, “It will attract the application of this normative set (Labor Law) under the risk that, in not doing so, it will be precipitated in civilizing retrogression.”

The decision analyzes the characterizing elements of the employment relationship one by one and, in dealing with subordination, says:

“In the hypothesis of the case, from any angle, we examine the factual framework of the relationship between the parties and, without any doubt, the subordination, in its classical matrix, is present. The author was submissive to orders on how to develop service delivery and continuous controls (...).”

Another sentence, now from the 38^th Labor Court of Sao Paulo¹⁸, in the same sense, says, when analyzing the existence of subordination: “(…) Respondents are confessed that user evaluations are decisive for maintaining the driver's record. In fact, the proposal, heard at the hearing, admitted that the plaintiff was dismissed precisely because he had a below average rating. “… who believes that the complainant was dismissed because of his below average rating” (page 1012).

However, the same sentence indicates that not every worker/application relationship will be of employment, as it disposes: “(…) It should be noted at this stage that the relationship between the defendants and the drivers who serve them is not characterized by the classic model of subordination and, therefore, depending on the specific case under consideration, there may not be a configuration of the employment relationship, especially in cases where the rendering of services actually proves to be occasional ”.

We also found decisions to the contrary¹⁹, which remove the employment relationship precisely because they consider no subordination, personality and other elements of the employment relationship.

What these decisions show us is an uncertainty in the typization of the legal relationship between the “new worker” and the new model of work, a mismatch between what is real and what is provided for by law.

2.3 The figure of the worker will change with Revolution 4.0.

Revolution 4.0 already impacts the labor market and will impact even more, as the authors of Chapter 13 “The challenge of jobs in the Fourth Industrial Revolution” show in the book Automation & Society - Fourth Industrial Revolution, A Look at Brazil²⁰; “The expectation is that more repetitive intellectual works will be replaced by robotization. Technology not only threatens the work of 'production', it also impacts many traditional professions. The report (2016 WEF World Economic Forum report) further states that by 2025 one in four known jobs today should be replaced by software and robots. ”

In Brazil, today, “of the 91.3 million employed persons in the quarter ended September 2017, 22.9 million were self-employed, and 10.9 million were employed in the private sector without a working register (…)²¹.”

Those who discuss the 4th Industrial Revolution and the profile of the worker that will be demanded indicate as characteristics²²: “greater social ability, more creative people with decision-making ability in environments of uncertainty (...).”

With the 4th Industrial Revolution, new labor relations emerged, with models totally different from those traditionally known by society and provided for by law, as well as new types of companies and, consequently, different forms of employability and work.

The traditional employment relationship itself is being struck, and will be much more in the future. How will collective and union relations be adapted?

3. Union relations in Brazil and the new forms of work of the 4^TH industrial revolution

In the history of labor relations, workers were protected, if not always, at least almost always, by groups that organized themselves for self-protection, creating structures to defend their interests. In Brazil, the union structure, if at first it has an interest of self-regulation, soon goes to state control, which creates heteronomous rules in its regulation, not directly derived from the workers' interests and not even allowing the choice of which union to join.

The Brazilian union model is based on the view of categories of workers united by the same profession or activity, necessarily linked (fascio²³) to an economic activity from which they derive.

It should be noted that the framework provided for in article 577 of the CLT, with the definition of categories for organized union framework in the 1940s, remains valid, and this is the understanding of the Brazilian courts, as found in the judgment below, in whose exposition we found²⁴:

“(…) The union framework meets the criterion of the preponderant economic activity of the company, according to the provisions of articles 570 and 581, § 2, of the CLT, as well as the territorial base (Carrion, Comments on the Consolidation of Labor Laws, 33^rd ed., P. 457). It is worth mentioning that the union classification of the professional category is a consequence of the classification of the economic category, since there must be correspondence between the economic and professional category in compliance with the criterion of symmetrical parallelism, except for those employees belonging to the differentiated category (§ 3 of Article 511 of the CLT) (...) ”

And below, in the same judgment, there is permission for a category breakdown, using the specificity criterion already defined by the TST, as in the judgment of the case (Case No. TST-E-ED-RR-880-42.2010.5.02 .0072, DEJT publication of 03.20.2015).

How then to adapt the new technologies and work forms brought by the 4^th Industrial Revolution to the current Brazilian union structure, still derived from the productive model of the 1930s, presented at the beginning of this work?

The need to change the way trade unions are represented and their actions to represent them was already indicated in the work “Les relations sociales em Europe”, which shows the need for unions' perception that the workers' profile has changed²⁵:

“Le syndicalisme de lutte a perdu ses troupes. Les salariés qui travaillent encore dans les secteur traditionnels n'ont plus le même profil.”

And still:

“Leurs discours (of the unions) et leurs pratiques paraissent parfois releer d'une autre époque. Ils ne “parlent” pas aux nouvelles générations”

The Brazilian trade union model, without union freedom, without even being able to define categories of workers freely, does not allow the creation of unions representing, for example, workers of a company, a city, a locality, an activity x or y. Therefore, in the Brazilian legal reality, the recognition of a category of workers precedes the creation of its union entity.

Now, the 4^th Industrial Revolution brings companies with economic activities totally different from those of its related workers and in contractual relations that today is not even sure in their legal nature, as we saw from the controversial decisions above. This revolution brings a new profile of workers, with new activities, or “old” activities performed differently.

Can this category be recognized as a “differentiated category” to the extent that it allows the acceptance of a trade union entity that wants to represent them? Which general category would they derive from, since the law requires decoupling rather than creating a new category?

Let us take, as an example, the reality of drivers who are registered and called through an application, a software that puts them in contact with potential passengers.

Beginning the analysis, it is important to note that, within the framework of article 577 of the CLT, we find in the transportation sector the following categories:

Today, in Sao Paulo, there are some unions that represent the category of drivers, as follows:

Sao Paulo Urban Road Transport Drivers and Workers Union – www.sindmotoristas.org.br/

This trade union represents the professional category of the road transport drivers and negotiates, in Sao Paulo, with the employers' union – Union of Urban Passenger Transport Companies of Sao Paulo.

Drivers and Workers Union at Taxi Companies in the State of Sao Paulo – www.simtetaxis.com.br

It should be noted that the category of taxi drivers was recognized by Law no. 12468, of August 26, 2011, which establishes: Article 1 The profession of taxi driver is recognized throughout the national territory, observing the precepts of this Law. Article 2, defines as “private activity of taxi drivers the use of own or third-party motor vehicle for the remunerated individual public transport of passengers, whose capacity will be a maximum of 7 (seven) passengers”.

There is also the Sao Paulo Private Cargo Drivers Union – /cargasproprias.org/, which indicates, on its website, to be derived from a broader previous category, thus generating a more specific professional category: Own Cargo Road Transport of Sao Paulo is the result of the dissatisfaction of a group of workers.

There are a lot of news about the creation of these application workers’ union and even a public transport workers union application notice in Sao Paulo, the Sao Paulo State Intermunicipal Land Transport Application Workers Union (Stattesp) and , in Bahia, the Union of Application Drivers, Cooperative Drivers and General Outsourced Workers of the State of Bahia-Simactter-Ba .

The Union of Bahia had a tax registration (CNPJ) granted in August 2017, however, it was not located in the Ministry system, neither the union registration nor registration of collective instruments of the MTE (Mediator) of any collective instrument that has been signed.

The movement to create a protective entity is not a Brazilians’ privilege; In the United States, negotiations have already begun between Uber and a drivers' union . It should be noted that in that country unions can be formed freely without strict criteria for representation.

The big question is: can workers in any application activity be considered a professional category differentiated by Brazilian law, as drafted today, to form a union that is recognized as such by the Ministry of Labor?

It should be noted that many drivers use other applications that work for taxis and private individuals, not just Uber; thus, the fundamental question, for the purposes of union representation, is; Does the way a rental car driver is called change the professional category in which he works, defining it as a different category from other drivers?

Recalling that specific categories usually derive from broader categories, usually split from a previously broader union.

Can someone say that there is a real difference in activity and function between a driver called by an application and a driver driving a taxi called by an application? Is the taxi driver using the same application as the private driver a taxi driver or application driver? Does the driver who uses an app and another form of calling – private phone, call center, or other – change his job category with each kind of calling?

Such questions are not opportunistic, they are essential to define the possibility of obtaining the union charter by these unions, because, otherwise, the legal situation of these entities will be that of unions without union capacity, that is, unions that cannot represent the professional category that created them. They would be equivalent, despite the name “unions” to mere associations, since their union nature will only be valid after state recognition through the granting of the union letter.

The Brazilian union law then creates the paradoxical situation of preaching a constitutional freedom of association, however, linked to the criterion of union unity, under state control, by decision of the Supreme Court, requiring recognition of a category of workers within strict legal criteria, always linked to the profession and without any freedom in its definition.

Now, if the way of action differentiated them as professionals, then if they were called by another form of communication in that working relationship, would they belong to another union? Are they drivers of “radio stations”? Or "Whatsapp Drivers"?

Nothing would prevent the creation of such unions if Brazilian law accepted real and full freedom of association without defining uniqueness linked to the professional category with definition governed by law.

As I write, Brazil is undergoing an investigation into the granting of union letters, showing what the mixture of state control and compulsory union contributions can generate. However, this investigation also paralyzed the granting of union letters, which precludes the verification of whether these union letters would be granted.

However, considering the current legislation, under the unions system, it cannot be considered that drivers who use an application to drive are a differentiated professional category from a driver who is called by other means, whether he is a taxi driver or an executive driver.

They are also not a professional category derived from the economic category of the company, as their economic activity is mostly computer and data processing.

It should be noted that, of the two unions cited as examples, Sao Paulo’s does not even define the professional category, having a generic denomination - Sao Paulo State Intermunicipal Land Transport Application Workers Union -, remaining to ask: what activities do such workers develop? Are they drivers? Or attendants? The data processors and/or any and all employees of these applications?

The created notice, by itself, is generic: “calls all member workers belonging to the Autonomous Professional category of Workers with Intermunicipal Land Transport Applications of the State of Sao Paulo; with the exception of their representation the Taxi drivers who perform their professional activities in the territorial base of the municipalities of… ”.

Such generalization is not permitted by current Brazilian law. A professional category either derives from the predominant activity of the employer or is recognized by law as a liberal or differentiated professional category. There is no other possibility.

A driver who sometimes drives because driven by an application, sometimes because driven by a telephone by a customer, sometimes because an executive transportation company has hired him is a driver, not an “application driver”. Otherwise, it would be as if he changed professional category with each form of drive.

In Bahia, the union indicates that it represents Application Drivers, Cooperative Drivers, and Third Party Workers in General, also a generic name, as “third party workers in general” covers any professional category and may even injure an existing union of conservation temporary service providers, cleaning and others in which such workers operate.

It should be noted that the Bahia union indicates its representativeness of “Uber partner drivers, other technology companies offering private passenger transport by application and the drivers of passenger cooperatives”. It also declares as its struggle "to present a law project indicative that proposes the regulation of all drivers of the category ...".

Now, then, it represents a category that is not yet recognized by law, nor does it derive from the economic activity of the company to which it is bound – by any legal form whatsoever – being neither a differentiated category, nor a liberal professional, nor linked to the activity from an employer… Therefore, representation not provided for by law in Brazilian law.

Analyzing the way of working of workers who develop their activities through applications, as it appears in the 4th Industrial Revolution, we can say that such activity, just by the way the worker is triggered, is not a differentiated profession by itself, nor neither it is an activity linked to the economic activity of a company. Under Brazilian strict rules to define the union framework, this prevents the legal recognition of union entities as such, that is, as entities with the power to negotiate collective instruments for a professional category.

The granting of the union charter could only be effected with an extension of the concept of category, which, strictly speaking, is not allowed by Brazilian law, even generating the possibility of legal questioning of such grant.

Even if the union letter was granted, once the trade union power entity had been negotiated, would negotiation be possible in the current way?

Analyzing also the Brazilian union structure, it can be seen that it allows the negotiation and creation of rules for workers hired under employment provided for in article 3 of the CLT. There is no room for negotiating working conditions for self-employed workers, for example, nor for negotiating with a non-employer, as in the case of outsourced activities.

The self-employed is, in the union structure, similar to the company, so much so that in Sao Paulo there is a union that represents the employees of such self-employed - Union of Employees of Autonomous Agents of Commerce and Advisory, Forensic, Information and Research and Accounting Services Companies in the State of São Paulo - which negotiates with employers' unions of different categories of freelancers and with companies of these categories ,, which have as a general definition on the union's website: “Autonomous agents of commerce are considered to be individuals or legal entities, individual or corporate, of any size, micro, small, medium or large, who engage in the following economic activities.”

Therefore, a self-employed person in the Brazilian union structure is a businessman, not a worker under the protection of an employee union. If the worker with some kind of application is considered as a micro-entrepreneur, or a self-employed worker, using a digital structure to work, union representation will be innocuous in terms of the possibility of negotiating working conditions, because it will be equated with company.

The Brazilian union structure only includes employees, not workers; employers, not companies in general, that, if they do not have employees, that is, they are not employers, should not even pay employers' union contributions .

Therefore, if the unions created, even if recognized in an irregular provision of the category concept provided by law, do not represent employees, they will have no one to negotiate with, as there will be no employers on the other side of the table.

4. A required revolution in brazilian union structure?

Analyzing the whole situation of the 4th Industrial Revolution and the emergence of new labor relations and new forms of service provision between figures that confuse workers/entrepreneurs – with contractual structures very different from the one provided for in Brazilian law (employment relationship) and yet, union representation linked to such a form of hiring – there is nothing more to be concluded than that the Brazilian union structure needs a revolution.

A revolution with freedom to create unions with different structures that not only closed categories and defined by law, but with full freedom of association and real perception of representation by its members.

The Brazilian union structure showed its weakness in changing labor legislation, in which the "represented" did not want to support them economically on a voluntary basis. It was a legislative change that abruptly threw open an unrepresentative structure that was not suited to the current patterns of labor relations, other than the classic employment relationship of the 1930s.

The trade union movement was never willing to rethink itself voluntarily, adapting itself to the reality of labor relations that changed over time, which underwent a rapid change with the 4th Industrial Revolution.

The workers changed their yearnings, their way of working; companies have changed their way of working, hiring; and Brazilian unions continue in the 1930s, sleeping in a splendid cradle until the end of the mandatory contribution.

Would it be possible to adapt the reality of the labor relations of the 4th Industrial Revolution to the current Brazilian union structure without a real revolution in the union structure?

The above analysis shows us no.

The current challenge of the Brazilian labor and union system is to generate such changes, which will necessarily entail a change of constitutional norm, quickly and effectively, generating real freedom and union representation in Brazil.

Either the trade union movement is modernized, sees the current labor relations and seeks the real freedom of association and representativeness of the wishes of its represented, or the 4th Industrial Revolution will change them without any participation, such as the change in Brazilian labor law in 2017.

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10 Schwab, Klaus. A quarta Revolução Industrial, São Paulo, 2016 Edipro, fls 15

11 Schwab, Klaus. A quarta Revolução Industrial, São Paulo, 2016 Edipro fls 15 a 17

12 Schwab, Klaus. A quarta Revolução Industrial, São Paulo, 2016 Edipro, fls 23

13 Harari, Yuval Noah, Homo Deus – Uma breve história do amanhã, São Paulo, 2016, Cia das Letras, fls 399

14 Schwab, Klaus. A quarta Revolução Industrial, São Paulo, 2016 Edipro, fls 21

15 Schwab, Klaus. A quarta Revolução Industrial, São Paulo, 2016 Edipro,, fls. 55

16 Aguiar, Antonio Carlos, Direito do Trabalho 2.0 digital e disruptivo, São Paulo, 2018, ed LTr, fls. 36

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20 Roncati, João; Silva, Mhileizer T.A. e Madeira, Felipe, “O desafio dos empregos na Quarta Revolução Industrial”,Automação & Sociedade – Quarta revolução industrial, um olhar para o Brasil, Coordenado por Dilva, Elcio B; Scoton, Maria L.R.P.D.; Pereira, Sergio L. e Dias, Eduardo M., São Paulo, 2018, ed Brasport fls 214.

21 Dados da Pesquisa Nacional por Amostra de Domicilios Continua – PNADC in Roncati, João; Silva, Mhileizer T.A. e Madeira, Felipe, “O desafio dos empregos na Quarta Revolução Industrial”,Automação & Sociedade – Quarta revolução industrial, um olhar para o Brasil, Coordenado por Dilva, Elcio B; Scoton, Maria L.R.P.D.; Pereira, Sergio L. e Dias, Eduardo M., São Paulo, 2018, ed Brasport fls. 215

22 Roncati, João; Silva, Mhileizer T.A. e Madeira, Felipe, “O desafio dos empregos na Quarta Revolução Industrial”,Automação & Sociedade – Quarta revolução industrial, um olhar para o Brasil, Coordenado por Dilva, Elcio B; Scoton, Maria L.R.P.D.; Pereira, Sergio L. e Dias, Eduardo M., São Paulo, 2018, ed Brasport fls 215

23 - feixe, facção /www.infopedia.pt/dicionarios/italiano-portugues/fascio

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25 Millot, Michèle e Roulleau, Jeal-Pol, i, , 2005, Paris, Fr, ed Liaisons pg 84.