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When a foreign worker provides services in Brazilian territory, are the laws that govern the contract those of the country of origin or Brazilian laws? This week's special article is about the foreign employee in Brazil and the Brazilian worker who works in other countries, the panorama and decisions of the Labor Court on the demands arising from these relations.
The Labor Justice guideline was that the legal relationship should be governed by the laws in force in the country in which the service is provided, as provided for in Summary Statement No. 207 / TST, which was canceled by the Superior Labor Court in April this year, with based on the vote of rapporteur of the vice-president, Minister Maria Cristina Peduzzi, in case RR-219000-93.2000.5.01.0019.
The summary, published in 1985, adopted the principle of lex loci executionis, which says that it is the legal labor relationship governed by the laws in force in the country in which the service is provided and not by those in the place of employment. But the Court had long been extending the application of Law No. 7,064 / 1982 to all professional categories, which guaranteed only the employees of engineering companies abroad the right to the most beneficial labor standard (be it in the country of hiring or rendering services) ).
And the legislator, aware of the jurisprudence that came to be established in the TST, through Law No. 11,962 / 2009, changed the wording of Article 1 of Law No. 7,064 / 82, extending the right to all workers hired in Brazil transferred by their employers to provide services abroad.
''Recent jurisprudential constructions, which have prevented the application of Precedent No. 207 ... indicate the prevalence of the principle of the most favorable rule over the principle of territoriality", said Minister Peduzzi, stressing that this trend has also been verified in the legal system from other countries.
Foreign workers have the same rights as Brazilians
The remarkable growth of the Brazilian economy in recent years has aroused the interest of a large number of foreigners to work in Brazil. According to statistics from the Ministry of Justice, there was a 57% increase in the number of foreign workers, reaching a total of 1.51 million in December last year.
At this juncture, the significant increase in the flow of immigrants from South American countries, such as Bolivians, Peruvians and Paraguayans, most of whom have no higher education and who see here an opportunity to improve living conditions, stands out.
What is the profile of these foreigners who come to work for our country? A large number of qualified young people have been looking for new experiences in smaller companies, which offer an opportunity for rapid growth. It is essential to mention the illegal immigrants, who, despite this condition, constitute a significant workforce, such as the Bolivians and Peruvians who work as street vendors and workers in the construction and clothing industry. Those present, especially in the state of São Paulo, have low education and qualification.
When working in the country, the foreigner has the same labor rights as an employee born in Brazil, such as 13th salary, FGTS and 30-day vacation, among others. It is also worth mentioning the standard eight-hour day or 44 hours a week, with one day off, preferably on Sundays.
There are countless decisions made by the Labor Court, in which foreigners obtain recognition of rights arising from the employment relationship.
The Third Panel of the Superior Labor Court decided that the Brazilian Labor Court is competent to judge the action of an Argentine engineer who worked for years in a concomitant manner in Brazil and Argentina. Dismissed after 23 years of work in the economic group Macri (a company in the field of telecommunications engineering, with branches in Brazil), the engineer asked for recognition of the employment relationship and resulting rights. But the requests were denied in the first and second instances. For Minister Alberto Bresciani, rapporteur of the process, as there was provision of services in Brazilian territory "there is no reason to deny national jurisdiction".
Another case, judged by the Sixth Panel of the TST in September 2006, set an important precedent. A Paraguayan worker, in an irregular situation in Brazil, obtained the right to sue the Labor Court after exercising the function of electrician for 17 years at Comercial Eletromotores Radar Ltda., And having been dismissed without receiving severance payments and FGTS.
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