The decision recognizes the labor rights of Uber drivers

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Renata worked As Uber for a short time between December 2018 and May 2019. For driver services, he gets about 2,300 BRL a month. When he stopped working, he had no rights, as is common with app drivers. Renata – her name has been changed to protect her privacy – decided to file a case against the platform at the Regional Labor Court. He requested to sign on his work card the time he devoted to service and the labor rights that every employee has: FGTS, thirteenth pay, leave, contribution to INSS. What it did achieve, however, was a historic victory over Uber.

After losing the process in the first instance and appealing, Uber tried to reach an agreement. The offer was for BRL 9,000 to withdraw the case and settle the dispute between the parties. He accepted, but the Regional Labor Court of Rio de Janeiro did not. Unlike extrajudicial agreements, which are made only between parties involved in the process, judicial agreements must be approved by a judge or class of judges. The method is legal and even desired by the judiciary, as it allows cases to be settled in a more amicable and faster manner than traditional trials.

Although the deal proposed by Uber is part of a larger strategy, it has been classified by the TRT-1, which denied approval of the deal, as “manipulative litigation through selective compromise”, the decision said. That is, through the contract, an attempt by Uber to create favorable jurisprudence in labor litigation for petitioning drivers. The practice was studied in academic research and explained in a report by stop in the way.

The decision of the Superior Labor Court, which confirmed the regional court’s understanding, was published in December 2022, but was only published on 3 February. The ruling, a decision by a group of ministers, not only condemned Uber for recognizing its employment relationship with Renata, but also provided a strong basis for deciding the same.

The reporter, Minister Alexandre Agra Belmonte, highlighted four points that could guarantee bonds to other application workers. They are: Uber presents itself as a technology company, but its revenue and raison d’être comes from transporting people; The worker is not autonomous because he does not have the tools at his disposal that would guarantee the maintenance of work outside the Uber platform; the company’s strategy to intervene in case law with the settlement; And CLT defined, more than ten years ago, that people who work through computerized systems are also submitted.

For Belmont, Uber “is not an application company, because it does not make a living by selling digital technology to third parties”. The judge’s decision argues that what the company sells is transportation, “in exchange for a percentage of rides and through an app it has created for itself.” The magistrate also noted that despite “careful wording and Uber’s semantic efforts”, the company “offers on-demand work through applications”.

Renan Kalil, prosecutor of the Public Ministry of Labour, agreed with Belmont’s position. For him, Uber “creates a narrative that positions it as a technology company, serving as an instrument to bring together the supply and demand of labor”, when it is not. “It is not their technology company to adopt the latest technological means”, the attorney points out.

Contrary to the company’s advertising, the decision emphasizes that service providers are not self-employed drivers, are subject to analysis and are restricted from making important decisions about their work, and are subject to “overtime” to ensure they earn at least a minimum. To guarantee their own livelihood in addition to the volatile demand for productivity and completing tasks in the shortest possible time”.

To The Intercept, Uber said it would file an appeal. “Besides not agreeing, the decision represents an isolated understanding and in contrast to the seven cases already tried by the court itself”, said the agency, which criticized the disclosure of the reporting minister. “Belmonte did not mention specific process information, judging the case, apparently, only based on a theoretical understanding of Uber’s operating model and the activities carried out by partner drivers in Brazil”, Uber said.

The company also highlighted that, in Brazil, “there are already more than 3,200 decisions by regional courts and labor courts that recognize that the platform has no employment relationship”. And he said he does not adopt “a strategy of effective litigation” nor does he try to “manipulate the case law.” “Besides being unrealistic, statements to the contrary imply a distrust of the impartiality of thousands of labor magistrates and should be seen as a disrespect for the independence of the judiciary”, Uber said. Read the company’s full response here.

The decision comes at a time when case law on the matter is being debated, with the new federal government studying laws for app workers and trying to implement a bill for platform economy companies like iFood that they wrote themselves, we’re counting down here. In TST, currently, there is a tie in understanding, with the 3rd and 8th panels placing their decisions in favor of recognizing the connection between the driver and the company and the 4th and 5th panels placing themselves on the opposite side. The subject is being analyzed by SBDI-1, a specialized subsection of private bargaining. The decision taken by the sector should standardize the issue – and will be followed by Brazil’s 24 regional labor courts.

We will be monitoring.