monday, 21 october of 2019

Brazilian trade union structure, the 4th industrial revolution, and the representativeness of new workers and companies*

Maria Lucia Ciampa Benhame Puglisi

1. Brazilian union structure: from pre-vargas to 1988 Constitution

1.1 Pre-Vargas

Different legal diplomas composed the Brazilian union legislation until the Labor Code edition, with provision sometimes more, sometimes less free.

The first legal diploma in Brazil to regulate unions was Decree no. 979, of January 6, 19031, making the formation of unions free, subject to a simple registration of their constituent acts in notary’s office: original wording – publication: Diario Oficial Newspaper – Section 1 – 01/14/1903, page 253 (Republishing))

Art. 2nd The organization of these unions is free of any restrictions or burdens, being sufficient, to obtain the favors of the law, to deposit in the Registry of hypotheca of the respective district, (...)

The union membership (art. 7) and the creation of central unions, without limitation of category or territorial base (art.11), were free.

This decree had a short life, and in 1907 it was issued Decree nr. 1637 of January 5, 19072, which did not bring the idea of union unity, allowing the free establishment of unions, with mere registration of their constituent acts, but it already limited, in its 1st article, the creation of associations for professionals in related or similar professions.

It is important to note that Decree no. 1641/19073, known as “Fat Law”, was issued, provided for the possibility of expulsion from Brazil, of foreigners who injured their devices, as it can be seen from their art. 1st.

Art. 1st A foreigner who, for any reason, compromises national security or public tranquility, may be expelled from part or all of the national territory.

Many of the trade unionists at that time were foreigners, thus acting under the possibility of expulsion from the national territory.

Thus, the Brazilian government can Always control union activity.

This control increased only in the 1930s, when a period of great State interference in the life of Brazilian unions began, a trend that was not extinguished until the present day, when Decree Nr. 19770, of March 19, 19314 - Diario Oficial da Uniao – Section 1 – 03/29/1931, Page 4801 (Original Publication) –

This Decree maintains the affiliation of identical, similar or related categories, but totally subordinates the trade union entity - from its inception and operation - to the state will to the point of maintaining a delegate from the Ministry of Labor, Industry and Commerce attending the assemblies and demanding union accountability.

It also has requirements for representativeness in case there is more than one union entity or split of that entity, recognizing as representative the one which has 2/3 or at least the majority of associates.

In 1934, the government issued Decree no. 24694, of July 12, 19345, which allows opening professional unions for the workers indicated there, prohibiting the unionization of public servants. The decree limits the territorial base of professional unions, but not of employers.

In 1939, a new trade union standard was issued: Decree-Law no. 1402, of July 5, 19396, which regulates union membership, clearly bringing the criterion of union uniqueness still in force today in Brazil, by establishing in its 6th article that “No more than one union will be recognized for each profession”.

Recognition is made by the Ministry of Labor, Industry and Commerce, in accordance with requirements set by law. The legal diploma is extensive, regulating union life in detail in 59 articles, principles that last so far.

In 1943, decree-Law no. 5452 of May 1st, 19437, in force until today, which consolidated the labor standards in force in the 1930s. This decree became known as the “CLT”, a standard offered by Getulio Vargas - the so-called “father of the poor”, in touted defense of the working class.

All in the best warlord style!

1.2. CLT – Consolidation of Labor Laws (Labor Code)

In CLT, the current rules of the union structure are in its Title V, with the articles 511 to 610, which regulate the union structure and its general rules. In the same title, the articles 611 to 625 deal with collective instruments derived from negotiation - Collective Convention and Collective Agreement.

The Brazilian union structure favors local representation, and keeps it fixed by professional categories that derive from the economic categories of companies8.

The structure contains three levels of entities with union personality according to article 512 of the CLT, which provides: Art. 512 - Only professional associations formed for the purposes and in the form of the previous article and registered in accordance with art. 558 may be recognized as Unions and vested in the prerogatives defined in this Law: Unions, Federations and Confederations.

The territorial base is recognized by the Ministry of Labor, when issuing the Union Letter. The Federations’ territorial base is State; and the one of the Confederations is national. But that of unions will only be interstate with ministerial authorization, but it cannot be national.

The unions were recognized by law in 2008, through Law No. 11,648. However, they have no union personality, which means that they cannot negotiate or sign collective instruments with working conditions.

Thus, such entities are not part of the workers' representativeness directly, since they have no bargaining power, exercising their activity through the unions affiliated to them.

How then, in Brazil, to make or know the correct union framework of companies or workers?

The first step in defining the union framework in Brazil is to define the economic category of the employer, which is based on its predominant economic activity, and based on it, the company will look for which employer union to join, necessarily on the territorial base in which it is located..

The business environment is not simple. In addition to the union membership of the preponderant activity in different territories, it is necessary to verify the existence of more than one economic activity, without any of them being preponderant, which can lead to the company's classification in more than one employer union, as for example, commercial activity and commercial representation. Finally, it should be verified how to frame any subsidiaries of the company, even when located on the same territorial base as the head office.

Considering that the activities of the subsidiaries of the company are interdependent with the preponderant activity of the head office, their union framework should follow that of the head office, using employer and professional union of the respective categories, as occurs when the branch office is merely the administrative office of the head office, although located on a different territorial base.

Once the corporate union framework is defined, the framework of its employees must be established, that is, to which union or unions their employees must be affiliated.

The rule is in the articles 570 and following of the CLT: The unions will be constituted by economic and professional category within the limits of the framework of the article 577 of the CLT (art. 570 of the CLT). The sole paragraph of the same article establishes the possibility of creating similar or related professional categories, that is, defined not on the basis of the business activity, but on the similarity of the workers' profession, always within the limits of the activities of the framework provided for in article 577 of the Labor Code. .

There is also the possibility of creating unions of differentiated professional categories, which derive from the general categories, with the authorization of the Ministry of Labor.

It is important to keep in mind that the article deals with categories that dissociate from existing categories, also considering the definition of differentiated category provided for in the CLT, which in § 3 of article 511, which defines it as: “(...) A differentiated category is that formed by employees who exercise different professions or functions by virtue of special professional status or as a result of unique living conditions. (...)”

There is then a “simple” step by step definition of categories for the professional union framework:

a)Check which professional union is linked to the most important activity of the company.

b)Verify the existence of a differentiated professional category, which are the emerged and detached from the dominant category by peculiarities in the function or even by political force, obtaining such workers their legal recognition as a regulated profession.

c)Check for employees in the liberal professions, such as lawyers, doctors, engineers and others.

Thus, the employer should check the union framework, still considered valid by the Courts, and investigate the existence of professional unions of the three categories above to insert their employees in the correct union. (Attention: it is not the worker who joins the union, but its employer does. Insertion is compulsory, only the association is free and optional). This generates the paradox that the represented does not choose who represents him but chooses whether or not to join that representative!

After 1988, the Federal Constitution was edited, which brought union rules in its midst, without, however, any substantive change.

1.3. 1988 Federal Constitution

The union rules are foreseen in article 8 of the FC9, which provides as general rules:

I - free foundation, without state interference

II - the union unity is maintained

III - representativeness of the union entity in the defense of the categories it represents

IV - determination at the general meeting (of the union entity) of the contribution regardless of the contribution provided for by law;

V - freedom of union membership;

VI – collective bargaining is only valid with the participation of a trade union

Thus, despite the expected freedom of creation of union entities, the system maintained the union uniqueness by economic and professional categories, with a fixed territorial base.

The system, at least curious, generated unspeakable problems in the creation of unions and the discussion of their validity and representativeness, to the point that the Federal Supreme Court was called to manifest and edit the Precedent no. 677, which kept control of the registration of the entities to the Ministry of Labor, which retains its veto power if union oneness is threatened.

Precedent 677/STF - 10/09/2003. Union. Principle of oneness. Registration of trade unions. Ministry of Labor. FC/88, art. 8, I and II.

“Until such time as the law may provide, it is incumbent upon the Ministry of Labor to register the unions and to ensure compliance with the principle of oneness.”

It should be noted that after 30 years, no one faced the need for a law that provides for freedom of association in Brazil.

Subsequent case-law precedent continues to adjudicate cases, recognizing the authority of the Ministry of Labor to control union records:


  • Indispensability of the trade union registration and constitutional clause prohibiting the requirement of state authorization for the creation of union bodies.

“This jurisprudential orientation, today enshrined in the wording of Precedent 677/STF, reflects nothing more than the recognition that, although the union entity may be constituted independently of prior governmental authorization - this is full of its institutional legal autonomy to the State (FC, art. 8, I) - the Constitution did not preclude state participation in the administrative procedure of effecting, through a binding act, the union registration. ”(ADI 5034 AgR, Rapporteur Minister Celso de Mello, Full Court, trial on 08/01/2014, DJe of 09/03/2014)

  • Compulsory registration and principle of union unity

“Regimental appeal in complaint. Public civil action filed by the Public Prosecution Service. Complaint filed with the Federal Supreme Court. Interlocutory appeal against decision of the rapporteur. Article 8, items I, II and III, of the Federal Constitution. Lack of legitimacy of the union to act before the Supreme Court. Absence of union registration in the Ministry of Labor and Employment. Need to comply with the posture of union unity. Freedom and union uniqueness. 1. It is incumbent upon the union to prove that it has a union registration with the Ministry of Labor and Employment, an indispensable instrument for overseeing the posture of union unity. 2. The trade union registration is the act that enables the unions to represent a certain category, in view of the need to comply with the posture of union unity. 3. The postulate of union unity, duly provided for in art. 8, II, of the Federal Constitution, is the most important of the constitutional limitations to union freedom. 4. Existence of Court precedents in similar cases. 5. Regimental appeal lodged by a union against a decision rejecting its application for admission to the present complaint as an interested party. 6. Improvised Regimental Appeal.” (Rcl 4990 AgR, Rapporteur Minister Ellen Gracie, Full Court, Judgment of 03/04/2009, DJe of 03/27/2009).

Based on this summary, in addition to the Supreme Court, as noted above, the lower courts also require for recognition of the union's representativeness such registration with the ministry of Labor:

“Registration with the Ministry of Labor is a sine qua non condition for unions to prove the regular constitution and representation of their affiliates, and thus to have procedural legitimacy.” (MAS 0024119-02.1996.4.01.0000/DF; Rapporteur: Federal Judge Maria Do Carmo Cardoso; Eighth Team; e-DJF1 p.413 of 05/14/2010).

“The Special Court of this Court has pacified its understanding that it is' indispensable for the Union to register with the Ministry of Labor and Employment (MTE) to take legal action in the defense of its affiliates” (EREsp 510.323/BA, DJ of 03.20.2006). [AEDAG 200900992797; Rapporteur: FERNANDO GONÇALVES; STJ SPECIAL COURT; DJE DATE: 3/29/2010]

Therefore, we are facing a situation in which a group of workers can form a union, but such an entity - created under the aegis of civil law - will only have the power of representation of the group of workers that created it, and will only be able to negotiate for it, represent them in legal proceedings as a procedural substitute if, and only if, it obtains registration with the Ministry of Labor, guardian of union unity by category.

Thus, trade union freedom in Brazil comes up against the limitation of uniqueness by professional or economic category still under the definition of Getulio Vargas’ corporatism of professions or related economic activities, which prohibits, for example, the registration of a workers' union in a city X or from company Y, even if they belong to different professionals or activities.

This type of framework, with the complexity seen above, as well as the limitation to the recognition of the entity as really representative, has a reflection on the validity of the collective instruments governing certain labor contracts of a category of workers.

It is necessary that the professional union represents the employees, based on their registration, and that this union entity has collective instruments signed either with the workers' direct employer or with the employer's representative union; otherwise the collective instrument will not be applied.

This is what follows from the judgment below:

COMPANY CONNECTED WITH THE INDUSTRY FEDERATION - COLLECTIVE CONVENTIONS FIRMED WITH THE COMMERCE FEDERATION - NON-PARTICIPATION - IMPOSSIBLE FRAMEWORK. It is not recognized the classification of company in collective agreements in which it did not participate, as it is affiliated to a union entity different from that contained in the conventional rules, in accordance with TST Precedent 374. (TRT-20 00004766620115200003, Rapporteur: MARIA DAS GRAÇAS MONTEIRO MELO, Published Date: 09/03/2012)

Therefore, it is not enough for workers to create new unions, even if they can, for example, register as differentiated categories; It is also necessary for them to be able to negotiate either with the employers' unions or with the companies individually, in order to be able to insert norms in the labor-legal order.

Thus, the Brazilian union structure was conceived based on watertight economic and professional activities, all well-defined, with identical or at most related realities. That is, it was designed for a situation of stability, of an economic structure divided into industrial, commercial or service activity. No changes.

How to adapt this structure to the new economic activities and labor relations that emerge?

How to fit a driver who works in a company which the economic activity is information technology? Or a manicure that works with the same type of company?

It is necessary, so that we can think of solutions, to analyze what nowadays is called the 4th Industrial Revolution.

2. The 4th industrial revolution: how to define workers categories?

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 4th 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 4th 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 4th 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 4th 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 Aguiar16,, 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 33rd 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 38th 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 4TH 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, 33rd 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 4th 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 4th 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:



1st GROUP – Railway companies Economic Activities or categories

1st GROUP – Railway workers Professional categories

Railway companies
Railway baggage handlers and carriers (self-employed)

Railway companies’ workers

2nd GROUP – Road transport companies

Economic Activities or categories

2nd GROUP – Road transport workers

Professional categories

Passengers transport companies

Cargo companies

Garage companies

Employees in offices of road transport companies

General luggage carriers


Road vehicle drivers (including helpers and porters, bus changers, car washers)

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 –

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 –

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 – /, 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 /

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


*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.

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