What do I need to know about the changes brought about by Pension Reform?
The Social Security reform entered into force on November 13, 2019 through the publication of Constitutional Amendment No. 103/2019, bringing in its content, new rules to be applicable to insured persons of the General Social Security Regime (RGPS) and of the Union’s own Social Security Regime (RPPS).
The main changes brought by the aforementioned constitutional amendment concern the rules inherent to the minimum age for a citizen to qualify for retirement, as well as the minimum time of his contribution with the INSS to retire, transition rules for the citizen who was already in the quality of Social Security insured, new rules to be applicable in case of death pension, etc.
In this article, the main changes brought by the new Social Security will be addressed, as we highlight in the points below:
Main rules related to minimum age and time of contribution:
Retirement by Urban Age (private sector workers, municipalities without their own social security system, among others, which are under the General Social Security regime (RGPS)):
The new urban age retirement rules require:
For women: proof of at least 62 years of age and 15 years of contribution;
For men: proof of at least 65 years of age and 20 years of contribution, and
For men who are affiliated to the RGPS (General Social Security Regime) before the publication of Constitutional Amendment No. 103/19, the minimum contribution time will remain at 15 years.
Retirement by Rural age:
The new age pension rules for rural workers require:
Contribution time of at least 15 years for both men and women;
Minimum retirement age for women: 55 years, and
Minimum retirement age for men: 60 years.
Federal public servants:
To federal public servants who contribute to the Union’s own Social Security System (RPPS), the retirement benefit will be granted if the following requirements are met:
Minimum age of 62 for women and 65 for men, and
Proof of 25 years of contribution to social Security, 10 years of public service, as well as 5 years in the position in which retirement will take place.
Retirement for teachers:
The retirement by time of contribution of the teacher requires proof by the Professional of 25 years of contribution for both men and women;
For women the minimum age will be 57 years;
For men the minimum age shall be 60 years, and
This rule will be applied to teachers who prove, exclusively, time of effective exercise in teaching functions in early childhood education, elementary school or high school.
Retirement for police officers:
Men and women will be able to retire at the age of 55 provided that they have contributed at least 30 years to social security, as well as have exercised their function in 25 years, and
The rule for the retirement of military police officers will also apply to the positions of penitentiary agent, socio-educational agent, Legislative Police, federal Police, Federal Road Police, federal Railway Police and civil police of the Federal District.
Calculation of pension benefit:
The calculation of the Pension Benefit will be as follows:
For workers under the General Social Security Regime (RGPS):
They will be able to retire with the 60% of the average of all pension contributions made since July 1994, provided that they have reached the minimum age and the minimum contribution time;
Two percentage points will be added on average to 60% of all pension contributions each year over contribution for this type of insured;
In order for them to live up to retirement in the amount of 100% of the average contributions, women must contribute for 35 years and men for 40 years;
The amount of pensions may not be less than a minimum wage or exceed the RGPS ceiling, currently corresponding to R$ 6,101. 06 (six thousand,one hundred and one reais and six cents), and
For women who contribute for more than 35 years and for men who contribute for more than 40 years with social Security, the percentage of the benefit received may exceed 100%, respecting the benefit ceiling established by the INSS.
For federal public servants:
Servers who entered the career from January 1, 2004: the calculation will follow the general rule of the new Social Security: average of 60% of all contributions plus two percentage points for each year of contribution that exceeds 20 years.
Servants who joined the public service until December 31, 2003: retirement amount will be that of the last salary, provided that the requirements of the transition rules mentioned below are met.
Rates
With the pension reform, the rates began to be progressive, as we observe below:
With the advent of the new Social Security, the rates began to focus on each remuneration range, in a similar way to the calculation of Income Tax.
Transitional rules
The pension reform brought with it transition rules for insured persons who were already in the labor market and contributed to social security, being guaranteed the choice of the most advantageous form of retirement.
The transition rules are differentiated depending on the contribution regime of the insured, as noted below:
For this scheme the transitional rules consist of:
Transition by points system (sum of contribution time with age)
Women: they will be able to retire from 86 points, with the minimum contribution time equivalent to 30 years;
Men: they will be able to retire from 96 points, with the minimum contribution time equivalent to 35 years;
Each year one more point will be required, reaching 105 points for men in 2028 and 100 points for women in 2033;
Teachers (both men and women) of basic education who prove the exercise of the teaching function in early childhood education and in elementary and Secondary Education will have a reduction of five points;
For teachers: they can apply for retirement from the sum of 81 points, as long as they have a minimum of 25 years of contribution;
For teachers: they can apply for retirement from the sum 91 points as long as they have at least 30 years of contribution, and
The aforementioned points will go up to 92 points, for female teachers, and up to 100 points, for teachers.
Transition by time of contribution and minimum age
Women: they will be able to retire at age 56, provided they have contributed at least 30 years, in 2019.;
Men: the minimum age required will be 61 years, with at least 35 years of contribution;
The minimum age required for both men and women will rise by six months each year, until it reaches 62 years of age for women in 2031 and 65 years of age for men in 2027;
Teachers of basic education who prove, exclusively, the exercise of the function of teaching in early childhood education and in elementary and secondary education: they will be entitled to a reduction of five years in the age and time of contribution.
Transition with pension factor-toll of 50%
Women with more than 28 years of contribution and men with more than 33 years of contribution will be able to opt for retirement without minimum age, provided that they comply with a 50% toll on the minimum time left to retire (30 years for women and 35 years for men). Example: a woman with 29 years of contribution will be able to retire without minimum age, as long as she contributes for another year and a half (one year corresponding to the period that was originally missing to retire and half a year, corresponding to the additional toll of 50%), and
The amount of the benefit will be calculated taking into account the average of all contributions since July 1994, on it applying the pension factor.
Transition with minimum age and toll of 100%
This rule establishes a minimum age and a toll of 100% of the time remaining to reach the required minimum contribution (30 years for women and 35 years for men).
For women, the minimum age will be 57 years;
For men, the minimum age will be 60 years.
Example: a woman of 57 years of age and 28 years of contribution will have to work four more years (two years left to reach the minimum contribution time, added to two years of toll), to claim the benefit;
The retirement amount will be 100% of the average of all contribution wages since July 1994 to workers linked to the RGPS;
Teachers of basic education who prove, exclusively, the exercise of the teaching function in early childhood education and in elementary and secondary education: there will be a reduction of five years in the age and time of contribution in the following proportion:
For women: 52 years of age and 25 years of contribution;
For men: 55 years of age and 30 years of contribution.
Transition-retirement by age (RGPS)
For men: minimum age of 65 years, with the contribution time of at least 15 years;
For women: in 2019, the minimum age began at 60 years, and should rise six months each year, in order to reach 62 years in 2023. The required contribution Time is a minimum of 15 years, and
The benefit amount will consist of an average of 60% of all contributions recorded since July 1994, plus two percentage points for each contribution year exceeding 15 years for women and 20 years for men;
RPPs of the Union-federal servers:
Transition by points system and minimum age
It will require 86 points for women and 96 points for men (in 2019), provided that the minimum age requirement below is observed:
ara women: 56 years in 2019, moving to 57 years in 2022.
For men: 61 years in 2019, moving to 62 years in 2022.
One more point will be required for each year, reaching 105 points for men in 2028 and 100 points for women in 2033.
The contribution period for the servants will be 30 years, and they must have at least 20 years of Public Service and 5 years in the position in which they will retire.
The contribution time for the servants will be 35 nos, and must have at least 20 years of Public Service and 5 years in the position in which retirement will take place.
Women who have reached the age of 62 will be able to retire with the full amount of their last active salary as long as they entered the public career until December 31, 2003;
Men who are 65 years old will be able to retire with the full amount of their last active salary as long as they entered the public career until December 31, 2003;
For civil servants (both men and women) who joined their positions from the year 2004, the calculation will follow the general rule of the new Social Security: average of 60% of all contributions plus two percentage points for each year of contribution that exceeds 20 years.
Basic education teachers: they will live up to the five-year reduction in the age and time of contribution, and the following scores must be observed:
For teachers: scoring starts at 81 points up to the 92-point limit.
For teacher: score will start at 91 points up to the limit of 100 points.
It must be proven by teachers, exclusively, time of effective exercise of teaching functions in early childhood education or in primary and Secondary Education.
Transition with minimum age and toll of 100%
Establishes a minimum age and a toll of 100% of the time left to reach the minimum contribution time:
For women: minimum contribution time equivalent to 30 years, with a minimum age of 57 years, being necessary to prove 20 years in the public service and 5 years in the position in which the retirement will take place.
For men: minimum contribution time equivalent to 35 years, with a minimum age of 60 years, being necessary to prove 20 years in the public service and 5 years in the position in which the retirement will take place.
The benefit will be equivalent to the last remuneration, for servants (both men and women) who have entered the career until December 31, 2003
For civil servants (both men and women) who entered the career from 2004, the benefit will be equivalent to 100% of the average of all salaries since July 1994. and
There will be a reduction of five years in the age and time of contribution of basic education teachers who exclusively prove, exercise of the teaching function in early childhood education or in elementary and Secondary Education.
Death pension
With the pension reform, there were inherent changes to the rules for those who will receive the death pension benefit. The payment consists of 50% of the deceased insured’s retirement amount plus 10% for each dependent he leaves, in the following proportion.
- 1 dependent: 60% of the deceased’s retirement
- 2 dependents: 70% of the deceased’s retirement
- 3 dependents: 80% of the deceased’s retirement
- 4 dependents: 90% of the deceased’s retirement
- 5 or more dependents: 100% of the deceased’s retirement
In the event that there are dependents who are invalid or have a serious disability, the payment of the death pension will be in the amount of 100% of the retirement amount of the deceased who contributed to the General Social Security Regime (RGPS), without exceeding the benefit payment ceiling.
In the case of death pension of Public Servants of the Union, of the amount that exceeds the ceiling will be paid 50% of retirement, plus 10% per dependent.
Finally, they will be entitled to the full pension (amount corresponding to the remuneration of the position), spouses or companions of police officers and correctional officers who die from aggression suffered as a result of work
Benefit limit and accrual
In cases where the law allows accumulation of benefit, 100% of the benefit of the highest value to which the person is entitled will be paid, plus a percentage of the sum of the others. The percentage will vary according to the benefit amount, as noted below.
- 100% of the amount up to a minimum wage;
- 60% of the amount that is between one and two minimum wages;
- 40% of what is between two and three salaries;
- 20% between three and four minimum wages; and
- 10% of what exceeds four minimum wages.
Conclusion
This article aimed to highlight the main changes brought by the Social Security reform, through explanations about new rules inherent to pensions, benefits and rules related to the death pension, both for the insured of the General Social Security Regime (RGPS) and for the insured of the regime for the Own Social Security Regime (RPPS).
To learn more, access in full the Constitutional Amendment No. 103/2019 available at: http://www.planalto.gov.br/ccivil_03/constituicao/emendas/emc/emc103.htm.
Geovana Carolina Silva de Andrade
Lawyer at TM Associados. Specialist in labor law and process by Faculdade Damásio De Jesus.
Minuta de política de home office
Com o novo surto do COVID-19 as empresas que voltaram a funcionar com os seus funcionários in loco terão que restabelecer a política de home office para que possam manter todos em segurança.
Pensando nisso, o TM Associados está disponibilizando uma minuta de política de home office, lembrando que, ela deve ser ajustada conforme a especificidade de cada caso.
Baixe agora mesmo
E lembre-se, oferecemos uma consultoria eficaz para tomada de decisões e análise de riscos. Proporcionamos aos nossos clientes a atuação de um departamento jurídico especializado, dentro e fora da empresa, dando todo o suporte necessário, já que, pela atual demanda de mercado, não se trabalha mais o problema depois de ocorrido, mas sim de maneira preventiva, de forma a minimizar os erros e diminuir os riscos.
Conte com o TM Associados para transformar o seu negócio em legado.
Vacinação de funcionários e sua obrigatoriedade ante a Covid-19
Devido à aprovação emergencial da vacinação da Covid-19 pela Anvisa, surgiu-se uma discussão no âmbito jurídico sobre a possibilidade de o empregador exigir de seus empregados a vacinação da doença, tendo em vista que existem posicionamentos que não entendem pela obrigatoriedade (ante o princípio constitucional de que ninguém será obrigado a fazer algo que não seja definido em lei), bem como existem posicionamentos que entendem pela exigência da obrigatoriedade da vacinação, já que tem-se a responsabilidade do empregador em garantir um ambiente de trabalho seguro, não podendo o trabalhador não vacinado colocar os demais trabalhadores em risco.
Diante das inúmeras discussões sobre o tema, é importante destacar o julgamento do STF (Supremo Tribunal Federal) no sentido de que o Estado poderá determinar que a vacinação da população contra a doença seja obrigatória, sem que haja medidas invasivas e o uso da força para exigir-se a imunização.
Em paralelo à decisão do STF, a recomendação do Ministério Público do Trabalho (MPT) é de que as empresas façam campanhas de conscientização acerca da vacina e usem a demissão por justa causa como forma de punição em último caso. Dessa forma, segundo o referido órgão, trabalhadores que se recusarem a tomar a vacina da Covid-19, sem justificativa médica, poderão ser demitidos por justa causa.
Referido entendimento do MPT parte do princípio de que a vacinação é um bem comum, cabendo aos empregadores realizarem campanhas de conscientização, envolvendo os sindicatos dos trabalhadores, de forma a abordarem o risco de contágio da doença nos programas de prevenção e incluir a vacina entre as medidas preventivas para assegurar a saúde dos trabalhadores.
Sendo assim, é mister informar que a orientação do MPT está de acordo com a decisão do Supremo Tribunal Federal (STF), o qual decidiu que o governo poderá impor penalidades a quem se recusar a tomar a vacina, bem como com a CLT e diversas normas regulamentadoras que buscam preservar a saúde e segurança dos trabalhadores.
Neste sentido, sendo o empregador o detentor do poder diretivo relacionado à organização das normas do trabalho previstas em políticas internas, o criador de exigências internas para a contratação de empregados e manutenção de seus respectivos empregos, o aplicador de medidas punitivas aos empregados (decorrentes do descumprimento destes em normas internas) parece lógico admitir a exigência por parte do empregador da vacinação de seus empregados, com a apresentação do certificado de vacinação destes.
A ausência dessa comprovação poderá admitir a adoção de medidas disciplinares que poderão importar em uma rescisão do contrato de trabalho por justa causa, decorrente de uma conduta de indisciplina e/ou insubordinação de seus empregados, já que poderá ser aplicável por analogia o próprio artigo 158, parágrafo único da CLT, que prevê que o empregador pode penalizar o empregado que se recusa a utilizar EPIs, uma vez que com o uso se busca proteger o meio ambiente laboral.
Diante do exposto e segundo entendimentos de juristas neste sentido, é importante deixar claro que não se trata de uma vacinação forçada a ser imposta aos empregados, mas sim, restrição de direitos a estes que se recusam à vacinação obrigatória, uma vez que as normas internas estabelecidas pelo empregador possuem validade jurídica desde que não importem em abuso de direito.
É claro que poderão existir empregados que, por questões de saúde, a exemplo de gestantes,
lactantes etc. não poderão ser vacinados, de modo que tal exigência por parte do empregador se tornaria incabível. De todo modo, tais situações deverão ser analisadas pelo empregador, devendo este criar alternativas para prestação de serviços destes empregados, a exemplo da transferência destes trabalhadores para laborarem através do regime de teletrabalho etc.
Segundo juristas, a questão envolvendo a obrigatoriedade de vacinação de trabalhadores envolve a utilização de bom senso, discernimento (sem desmerecer a questão da saúde pública), do interesse coletivo, e respeito a políticas empresariais e ao poder diretivo do empregador, incumbido em manter ambiente de trabalho seguro e salubre.
Por fim, como já exposto, a recomendação do Ministério Público do Trabalho (MPT) é que empresas façam campanhas de conscientização e usem a demissão por justa causa como forma de punição em último caso. Inclusive, o empregador poderá realizar também junto aos sindicatos correspondentes, acordos ou convenções coletivas regulamentando a matéria acerca da vacinação dos empregados contra a Covid-19, procedimentos estes que garantirão ao empregador maior segurança jurídica sobre o tema, de forma a prevenir a judicialização da matéria.
Geovana Carolina Silva de Andrade
Advogada, graduada em direito pelo Centro Universitário de Campo Limpo Paulista/SP (2017), inscrita na Ordem dos Advogados do Brasil, Seção de São Paulo (OAB/SP) (2018). Pós-graduada em Direito e Processo do Trabalho pela Faculdade Damásio de Jesus. Advogada no TM Associados.
Diferenças entre Marcas e Patentes
No momento atual, em que o empreendedorismo e as startups crescem a cada dia, torna-se mais comum a procura por registrar sua marca e patentear o seu produto.
Ambos os serviços são feitos pelo Instituto Nacional de Propriedade Industrial – INPI, e têm como base a lei nº 9.279/1996 (Lei de Propriedade Industrial), mas será que todos os empreendedores sabem a real diferença entre a marca e a patente?
A marca é a vitrine do seu negócio ou a identidade do seu produto/serviço, ou seja, é o sinal, o desenho, o nome pelo qual seu negócio ou produto/serviço será conhecido por seus clientes e concorrentes.
O registro da marca impede que outras pessoas a usem sem o seu consentimento, ou seja, o registro da marca é uma proteção para o seu negócio ou para o seu produto/serviço.
Além disso, com o registro da marca e com o tempo, sua marca pode se tornar mais valiosa, como é o exemplo da Nike, McDonalds e outras marcas, que apenas com um simples desenho ou símbolo, já é possível identificar a sua força e significância no mercado.
As marcas podem ser registradas para:
As marcas podem ser compostas por palavras (nominativa), desenhos e símbolos (figurativa), a junção destes elementos ou uma grafia estilizada própria (mista) ou ainda seu formato (tridimensional), como a garrafa estilizada no refrigerante Fanta, da Coca Cola – o formato da garrafa do produto faz parte da sua marca.
Quando uma marca é registrada no INPI, seu uso no Brasil torna-se exclusivo por 10 anos, a partir da data da concessão, e este período pode ser prorrogado, por sucessivos períodos de 10 anos.
Já as patentes, são uma forma de proteção para produtos/métodos de produção inovadores. É uma proteção às invenções, ligadas a novos produtos, novas tecnologias, novos processos de fabricação etc.
A proteção das patentes é concedida por um determinado período, e passado este tempo, a invenção perde a exclusividade no mercado comercial e outras empresas podem utilizá-la.
Importante mencionar que uma vez registrada a patente, esta já se torna pública. Por este motivo a empresa Coca-Cola nunca registrou a fórmula do famoso refrigerante, por exemplo.
Com a concessão da patente, tem-se a exclusividade da comercialização e do uso da inovação do produto como um todo, pelo período entre 15 e 20 anos, além de possibilitar a exploração comercial via licenciamento.
Para ser patenteável, a invenção deve atender a alguns requisitos, como:
Para concluir, é importante destacar quais são os tipos de patentes que existem, ou seja, quais são suas naturezas:
Tanto a marca quanto a patente, são destinadas ao INPI, e são controladas e fiscalizadas por este órgão do Governo Federal, para que se receba o Certificado de Registro, no caso das marcas, ou a Carta-Patente, no caso das patentes.
Em média, a concessão pelo INPI pode demorar cerca de 3 anos, somente em casos excepcionais que este prazo pode chegar a 10 anos (caso de patentes de difíceis complexidades, por exemplo), mas, apesar da demora, a importância destes registros e proteções sobressaem o tempo de espera.
Desta forma, apesar do processo relativamente longo para a concessão, a proteção que este traz aos empresários torna-se ainda mais importante para o desenvolvimento do seu negócio.
Giovanna Luz Carlos
Advogada, graduada em direito com ênfase em Direito Civil pelo Centro Universitário Padre Anchieta – FADIPA (2019) inscrita na Ordem dos Advogados do Brasil, Seção São Paulo (OAB/SP). Pós graduanda em Processo Civil pela Faculdade Damásio de Jesus. Advogada na TM Associados.
Como lidar com cancelamentos de pacotes e multas
Da noite para o dia, um dos setores mais promissores da economia brasileira foi diretamente afetado pelo efeito da pandemia, e muitos brasileiros chegaram com a mesma pergunta: o que fazer com esse feriado já comprado?
As agências de viagens são organizadas diariamente para verificar e reduzir as perdas que passageiros e viajantes possivelmente sofreriam, e já é imaginável entender um canal de comunicação mais culpado e transparente entre essas corporações e seus consumidores.
A ANAC (Agência Nacional de Aviação Civil), acima de tudo, já regulamentou que o passageiro poderá retirar-se da aquisição com o reembolso integral dos valores pagos, no prazo de 24 horas após o recebimento do vale-transporte, mas desde que a compra se posicione até 7 dias antes da data do voo.
Além disso, o Código de Defesa do Consumidor também estabelece que se a aquisição fosse feita pela internet (ou fora do estabelecimento publicitário), possivelmente seria cancelada em até 7 dias.
Quando o passageiro solicita um reembolso, as companhias aéreas têm até 7 dias (a partir da data da solicitação) para efetuar o pagamento ao cliente culpado da compra da passagem aérea, seguindo a mesma utilizada no momento da compra. cliente fez o pagamento com seu cartão de crédito, a companhia aérea tem até 7 dias para enviar os créditos para a operadora do cartão.
No entanto, nos casos em que o pedido de cancelamento do preço da passagem aérea chega após 7 dias de compra, o TJSP e o STJ concordam que as companhias aéreas terão que reembolsar o preço da passagem (incluindo passagens de preço promocional), retendo de 5% a 20% do valor da taxa de inscrição, mas olho no olho , o cancelamento deve ser feito com pelo menos com antecedência, para que esses bilhetes de preço possam ser revendidos através dos empreendimentos.
Há muito medo e hipóteses sobre esse assunto, e acontece que quanto mais perto do Fim de Ano (época em que o turismo no Brasil é ainda mais procurado), mais os outros se preocupam com suas viagens programadas.
O Procon chegou a pedir aos passageiros que procurassem agências onde o pacote foi comprado, para saber mais sobre como proceder com o cancelamento, mas lembrou aos consumidores que, segundo o CDC, o que foi acordado no contrato terá que ser cumprido.
Isso significa, por exemplo, que em caso de adiamento de pacotes promocionais ou fora de temporada, o adiamento terá que aderir ao mesmo tempo e regime e, de acordo com o contrato, as multas possivelmente serão cobradas em caso de cancelamento.
Vale ressaltar que tudo ainda pode mudar, uma vez que o próprio legislativo brasileiro tem trabalhado para pacificar essa questão e, assim, garantir maior segurança jurídica, não só para os consumidores, mas também para as corporações do setor turístico.
Uma lei estadual de Pernambuco suspendeu o faturamento de taxas adicionais para cancelamentos de voos e viagens de pacotes da pandemia Covid-19. A lei terá validade um ano após a conclusão do estado de calamidade pública.
De acordo com esta lei, companhias aéreas e agências estão proibidas de cobrar taxas adicionais por cancelamento ou adiamento devido à nova pandemia coronavírus.
A lei também prevê o ressarcimento das quantias pagas pelo consumidor no prazo de 12 meses após o término da pandemia. Em caso de descumprimento da lei estadual, a empresa deverá pagar multa de R$ 6. 000,00 (seis mil reais) pela avaliação feita, e esse valor arrecadado com as multas será doado ao Fundo Estadual de Defesa do Consumidor.
Portanto, quando se trata de viagens e turismo, provavelmente ainda haverá novidades sobre a pandemia e tentativas de danos causados a tantos brasileiros que tiveram que viajar, e dessa forma, é obrigatório estar atento a qualquer notícia sobre o assunto. ter maior proteção legal.
Giovanna Luz Carlos Abogado, graduada em Direito em Direito Civil pelo Centro Universitário Padre Anchieta – FADIPA (2019) matriculou-se na Ordem dos Advogados do Brasil, segmento são-paulino (OAB/SP), estudante de pós-graduação em processos civis na Faculdade Damsio de Jesus. Advogado da TM Associados.
1 year after law 13.792/2019: what has changed?
When the measure was approved last year, the changes generated diverse opinions from jurists and lawyers specialized in the area. But what has actually changed?
It has been more than a year since the enactment of law 13.792/2019 that amended the articles of the Civil Code referring to two topics of corporate law:
Change of quorum in limited companies; and
Amendment of the rule of exclusion of a partner for serious misconduct in a limited company
According to the Explanatory Memorandum of the legislative process of the highlighted law, the objective was to simplify the procedures concerning limited companies, which are the type of corporate most used in Brazil.[1]
As an example, in the Junta Comercial do Estado do Rio de Janeiro – JUCERJA, from January to August 2019, 12,307 sociedades limitadas (LTDA), 11,413 empresas individuais de responsabilidade limitada (EIRELI) were incorporated against only 191 sociedades anônimas (sa).
Having overcome such introductory questions, we turn to the analysis of the amendments separately:
Amendment of the quorum for deliberation in limited liability companies
§ 1 of Article 1.063 of the Civil Code provided for a quorum of 2/3 (two thirds) of the share capital to effect the dismissal of the partner who was appointed administrator in the articles of incorporation. This quorum, which represented the qualified majority, was different from the standard rule of dismissal of directors, which establishes the need for votes holding more than 50% (fifty percent) of the share capital.
In the new legal framework presented, the need for the aforementioned quorum (2/3) previously required in the cases of limited companies was removed. Under the new law, to remove a partner appointed administrator in the social contract itself, only the vote of the majority of the share capital is required
See the comparative table:
Change in the procedure for the exclusion of a partner for serious misconduct in a limited company
The only § of Article 1.085 of the Civil Code that deals with the procedure of extrajudicial exclusion of the partner accused of committing serious misconduct, also underwent changes, removing the exception previously in force with respect to limited companies that have only two partners.
Now, the new law establishes the need to hold a meeting or assembly of partners to determine the exclusion of a partner in a society that has only two partners (article 1.085, sole§, of the Civil Code).
Apparently the change seems harmless, however, it generates important legal consequences for companies composed of two partners. According to recent data from Fundação Getúlio Vargas (FGV), these correspond to 85.70% of the total Limited Companies in Brazil.[2]
The intention of the legislator was to facilitate the procedure by exempting companies composed of two partners from formal and expensive acts – removing bureaucracy–, allowing the majority partner to exclude the minority from the board, by simply changing the social contact and presenting the other requirements that article 1.085 lists.
See the comparative table:
From our point of view, it is still too early to say the effective application of the Institute. Although the law values the principle of speed, it is risky from the perspective of the minority partner, who now has no opportunity to challenge the exclusion decision in the Assembly, leaving its defense only by judicial means.
Rafael De Sordi Barbosa Martins.
Attorney at TM Associates. Postgraduate in Business Law at FGV-LAW.
Leonardo Theon de Morais.
Founding partner at TM Associados. Master in political and Economic Law from Universidade Presbiteriana Mackenzie.
[2] Radiografia das Sociedades Limitadas, FGV: https://direitosp.fgv.br/sites/direitosp.fgv.br/files/arquivos/anexos/radiografia_das_ltdas_v5.pdf
Juiz de Fora company is convicted of keeping employee in forced idleness
A telemarketing company, based in Juiz de Fora (MG), will have to pay R$ 5,500 for moral damages to a former employee who was subjected to forced idleness. The decision is made by Judge Tarcísio Correa de Brito, holder of the 5ª Labor Court of Juiz de Fora, who also recognized the indirect termination of the professional’s employment contract, with the payment of the termination amounts due.
The former employee said that she was admitted in May 2015 and that she left the service, receiving Social Security Assistance, from 2016 to 2019. He explained that after rehabilitation by the INSS, he returned to work. However, according to her, the company did not provide a suitable place, being subjected to forced idleness.
The employee in the files also claimed that, after this return, she suffered several constraints. In his application, he stated that, since his badge did not pass through the turnstile, he had to ask for access to a supervisor every day.
The decision was made by Judge Tarcísio Correa de Brito understood that the acts of the employer fall under Article 483 of the CLT, by not providing work to the worker. Also, that he committed an act harmful to the honor of the professional by leaving her unjustifiably at leisure and not providing a definitive password and card. For this reason, it recognized the indirect termination of the employment contract, on the date of publication of the judgment, ordering the company to pay the termination sums due.
For the magistrate, compensation for moral damage was also due, in the amount of R$ 5.500, for understanding that “the situation experienced of discrimination and idleness caused pain and anguish in the telemarketing attendant”
MP amends Pele law
The Federal Government issued provisional measure 984/20, which determines that the rights to broadcast or reproduce sports matches belong to the club that owns the game. The MP amends the Pelé law, which before the change distributed the so-called “arena right” between the owner of the house and the opponent of the match.
The measure amends the Pelé law that previously distributed the so-called” right of arena ” between the owner of the house and the opponent of the match. With the change, the TV or radio station interested in showing the match will need to negotiate only with one team, and not two more. Apart from this hypothesis, the club itself will be able to broadcast the event, opening a new possibility of revenue source. According to the MP, the negotiation with the two teams will only take place if there is uncertainty as to the holder of the game controller.
Sponsorship
In addition to the benefits to the fan, sports entities will have more freedom to negotiate contracts with sponsors, as these will have greater visibility. The sponsor of the broadcast of a certain competition may also sponsor a club, displaying its brand on the athlete’s shirt.
Another change brought by the MP was the repeal of paragraphs 5 and 6 of Article 27-A of the Pelé law. The rules prevented television or radio stations from sponsoring or displaying their brands on athletes ‘ uniforms during competitions.
“The removal of locks like this in the legislation will ensure that more companies enter the market, generating revenue for entities, restoring the financial economic balance of the entire sports chain,“ explains Christiano Souto Puppi, director of the Department of football and defense of fans’ rights of the special secretariat of Sport.
Employment contract
The provisional measure also reduced, until December 31 of this year, the minimum time of employment contract of professional athletes from 90 days to 30 days, due to the COVID-19 pandemic. The change in the Pelé law, which follows the determinations of FIFA and the Brazilian Football Confederation (CBF), contributes to reducing economic losses of sports entities with the Prohibition of competitions, which have reduced revenues. By adding this change in the MP, the Federal Government already puts into force an article of a bill on the same subject, approved last Wednesday (17.06) in the Chamber of Deputies.
Benefits to athletes
Athletes also benefit from the change in the Pele law. From now on, they will directly manage, without the intermediation of unions, the resources obtained as image rights in competitions, which represent 5% (five percent) of the revenue from the exploitation of audiovisual sports rights.
Source: camara.leg.br
See the integra of the standard by downloading below:
MPV-984Download
After all, what has changed with the pension reform?
What do I need to know about the changes brought about by Pension Reform?
The Social Security reform entered into force on November 13, 2019 through the publication of Constitutional Amendment No. 103/2019, bringing in its content, new rules to be applicable to insured persons of the General Social Security Regime (RGPS) and of the Union’s own Social Security Regime (RPPS).
The main changes brought by the aforementioned constitutional amendment concern the rules inherent to the minimum age for a citizen to qualify for retirement, as well as the minimum time of his contribution with the INSS to retire, transition rules for the citizen who was already in the quality of Social Security insured, new rules to be applicable in case of death pension, etc.
In this article, the main changes brought by the new Social Security will be addressed, as we highlight in the points below:
Main rules related to minimum age and time of contribution:
Retirement by Urban Age (private sector workers, municipalities without their own social security system, among others, which are under the General Social Security regime (RGPS)):
The new urban age retirement rules require:
For women: proof of at least 62 years of age and 15 years of contribution;
For men: proof of at least 65 years of age and 20 years of contribution, and
For men who are affiliated to the RGPS (General Social Security Regime) before the publication of Constitutional Amendment No. 103/19, the minimum contribution time will remain at 15 years.
Retirement by Rural age:
The new age pension rules for rural workers require:
Contribution time of at least 15 years for both men and women;
Minimum retirement age for women: 55 years, and
Minimum retirement age for men: 60 years.
Federal public servants:
To federal public servants who contribute to the Union’s own Social Security System (RPPS), the retirement benefit will be granted if the following requirements are met:
Minimum age of 62 for women and 65 for men, and
Proof of 25 years of contribution to social Security, 10 years of public service, as well as 5 years in the position in which retirement will take place.
Retirement for teachers:
The retirement by time of contribution of the teacher requires proof by the Professional of 25 years of contribution for both men and women;
For women the minimum age will be 57 years;
For men the minimum age shall be 60 years, and
This rule will be applied to teachers who prove, exclusively, time of effective exercise in teaching functions in early childhood education, elementary school or high school.
Retirement for police officers:
Men and women will be able to retire at the age of 55 provided that they have contributed at least 30 years to social security, as well as have exercised their function in 25 years, and
The rule for the retirement of military police officers will also apply to the positions of penitentiary agent, socio-educational agent, Legislative Police, federal Police, Federal Road Police, federal Railway Police and civil police of the Federal District.
Calculation of pension benefit:
The calculation of the Pension Benefit will be as follows:
For workers under the General Social Security Regime (RGPS):
They will be able to retire with the 60% of the average of all pension contributions made since July 1994, provided that they have reached the minimum age and the minimum contribution time;
Two percentage points will be added on average to 60% of all pension contributions each year over contribution for this type of insured;
In order for them to live up to retirement in the amount of 100% of the average contributions, women must contribute for 35 years and men for 40 years;
The amount of pensions may not be less than a minimum wage or exceed the RGPS ceiling, currently corresponding to R$ 6,101. 06 (six thousand,one hundred and one reais and six cents), and
For women who contribute for more than 35 years and for men who contribute for more than 40 years with social Security, the percentage of the benefit received may exceed 100%, respecting the benefit ceiling established by the INSS.
For federal public servants:
Servers who entered the career from January 1, 2004: the calculation will follow the general rule of the new Social Security: average of 60% of all contributions plus two percentage points for each year of contribution that exceeds 20 years.
Servants who joined the public service until December 31, 2003: retirement amount will be that of the last salary, provided that the requirements of the transition rules mentioned below are met.
Rates
With the pension reform, the rates began to be progressive, as we observe below:
With the advent of the new Social Security, the rates began to focus on each remuneration range, in a similar way to the calculation of Income Tax.
Transitional rules
The pension reform brought with it transition rules for insured persons who were already in the labor market and contributed to social security, being guaranteed the choice of the most advantageous form of retirement.
The transition rules are differentiated depending on the contribution regime of the insured, as noted below:
For this scheme the transitional rules consist of:
Transition by points system (sum of contribution time with age)
Women: they will be able to retire from 86 points, with the minimum contribution time equivalent to 30 years;
Men: they will be able to retire from 96 points, with the minimum contribution time equivalent to 35 years;
Each year one more point will be required, reaching 105 points for men in 2028 and 100 points for women in 2033;
Teachers (both men and women) of basic education who prove the exercise of the teaching function in early childhood education and in elementary and Secondary Education will have a reduction of five points;
For teachers: they can apply for retirement from the sum of 81 points, as long as they have a minimum of 25 years of contribution;
For teachers: they can apply for retirement from the sum 91 points as long as they have at least 30 years of contribution, and
The aforementioned points will go up to 92 points, for female teachers, and up to 100 points, for teachers.
Transition by time of contribution and minimum age
Women: they will be able to retire at age 56, provided they have contributed at least 30 years, in 2019.;
Men: the minimum age required will be 61 years, with at least 35 years of contribution;
The minimum age required for both men and women will rise by six months each year, until it reaches 62 years of age for women in 2031 and 65 years of age for men in 2027;
Teachers of basic education who prove, exclusively, the exercise of the function of teaching in early childhood education and in elementary and secondary education: they will be entitled to a reduction of five years in the age and time of contribution.
Transition with pension factor-toll of 50%
Women with more than 28 years of contribution and men with more than 33 years of contribution will be able to opt for retirement without minimum age, provided that they comply with a 50% toll on the minimum time left to retire (30 years for women and 35 years for men). Example: a woman with 29 years of contribution will be able to retire without minimum age, as long as she contributes for another year and a half (one year corresponding to the period that was originally missing to retire and half a year, corresponding to the additional toll of 50%), and
The amount of the benefit will be calculated taking into account the average of all contributions since July 1994, on it applying the pension factor.
Transition with minimum age and toll of 100%
This rule establishes a minimum age and a toll of 100% of the time remaining to reach the required minimum contribution (30 years for women and 35 years for men).
For women, the minimum age will be 57 years;
For men, the minimum age will be 60 years.
Example: a woman of 57 years of age and 28 years of contribution will have to work four more years (two years left to reach the minimum contribution time, added to two years of toll), to claim the benefit;
The retirement amount will be 100% of the average of all contribution wages since July 1994 to workers linked to the RGPS;
Teachers of basic education who prove, exclusively, the exercise of the teaching function in early childhood education and in elementary and secondary education: there will be a reduction of five years in the age and time of contribution in the following proportion:
For women: 52 years of age and 25 years of contribution;
For men: 55 years of age and 30 years of contribution.
Transition-retirement by age (RGPS)
For men: minimum age of 65 years, with the contribution time of at least 15 years;
For women: in 2019, the minimum age began at 60 years, and should rise six months each year, in order to reach 62 years in 2023. The required contribution Time is a minimum of 15 years, and
The benefit amount will consist of an average of 60% of all contributions recorded since July 1994, plus two percentage points for each contribution year exceeding 15 years for women and 20 years for men;
RPPs of the Union-federal servers:
Transition by points system and minimum age
It will require 86 points for women and 96 points for men (in 2019), provided that the minimum age requirement below is observed:
ara women: 56 years in 2019, moving to 57 years in 2022.
For men: 61 years in 2019, moving to 62 years in 2022.
One more point will be required for each year, reaching 105 points for men in 2028 and 100 points for women in 2033.
The contribution period for the servants will be 30 years, and they must have at least 20 years of Public Service and 5 years in the position in which they will retire.
The contribution time for the servants will be 35 nos, and must have at least 20 years of Public Service and 5 years in the position in which retirement will take place.
Women who have reached the age of 62 will be able to retire with the full amount of their last active salary as long as they entered the public career until December 31, 2003;
Men who are 65 years old will be able to retire with the full amount of their last active salary as long as they entered the public career until December 31, 2003;
For civil servants (both men and women) who joined their positions from the year 2004, the calculation will follow the general rule of the new Social Security: average of 60% of all contributions plus two percentage points for each year of contribution that exceeds 20 years.
Basic education teachers: they will live up to the five-year reduction in the age and time of contribution, and the following scores must be observed:
For teachers: scoring starts at 81 points up to the 92-point limit.
For teacher: score will start at 91 points up to the limit of 100 points.
It must be proven by teachers, exclusively, time of effective exercise of teaching functions in early childhood education or in primary and Secondary Education.
Transition with minimum age and toll of 100%
Establishes a minimum age and a toll of 100% of the time left to reach the minimum contribution time:
For women: minimum contribution time equivalent to 30 years, with a minimum age of 57 years, being necessary to prove 20 years in the public service and 5 years in the position in which the retirement will take place.
For men: minimum contribution time equivalent to 35 years, with a minimum age of 60 years, being necessary to prove 20 years in the public service and 5 years in the position in which the retirement will take place.
The benefit will be equivalent to the last remuneration, for servants (both men and women) who have entered the career until December 31, 2003
For civil servants (both men and women) who entered the career from 2004, the benefit will be equivalent to 100% of the average of all salaries since July 1994. and
There will be a reduction of five years in the age and time of contribution of basic education teachers who exclusively prove, exercise of the teaching function in early childhood education or in elementary and Secondary Education.
Death pension
With the pension reform, there were inherent changes to the rules for those who will receive the death pension benefit. The payment consists of 50% of the deceased insured’s retirement amount plus 10% for each dependent he leaves, in the following proportion.
In the event that there are dependents who are invalid or have a serious disability, the payment of the death pension will be in the amount of 100% of the retirement amount of the deceased who contributed to the General Social Security Regime (RGPS), without exceeding the benefit payment ceiling.
In the case of death pension of Public Servants of the Union, of the amount that exceeds the ceiling will be paid 50% of retirement, plus 10% per dependent.
Finally, they will be entitled to the full pension (amount corresponding to the remuneration of the position), spouses or companions of police officers and correctional officers who die from aggression suffered as a result of work
Benefit limit and accrual
In cases where the law allows accumulation of benefit, 100% of the benefit of the highest value to which the person is entitled will be paid, plus a percentage of the sum of the others. The percentage will vary according to the benefit amount, as noted below.
Conclusion
This article aimed to highlight the main changes brought by the Social Security reform, through explanations about new rules inherent to pensions, benefits and rules related to the death pension, both for the insured of the General Social Security Regime (RGPS) and for the insured of the regime for the Own Social Security Regime (RPPS).
To learn more, access in full the Constitutional Amendment No. 103/2019 available at: http://www.planalto.gov.br/ccivil_03/constituicao/emendas/emc/emc103.htm.
Geovana Carolina Silva de Andrade
Lawyer at TM Associados. Specialist in labor law and process by Faculdade Damásio De Jesus.
Home office and home working
Said to be a tendency for the job, especially in the aftermath of the pandemic of COVID-19, the home office is a sport that allows for staff to be able to work and do their jobs from home or from anywhere else outside of the office.
When we talk about the home office is usually faced with a certain degree of confusion between the concepts of home, office and remote work, however, these methods don’t get mixed up.
At home, the office, the worker sets out to your place of work, at home, setting up a work station with access to the means of communication, using their own or one provided by the company to carry out its tasks.
Already, it definitely it deserves a special attention, since it is a special form of the work for distance or remote, in which it is used in information technology and communication in order to decentralize the activities that would normally be performed in the premises of the company, and not necessarily in a house for the workers. The main feature of the working is to be performed, the methods used are in English.
In short, it definitely is the one that runs out of the facilities of the employer. That is, it is not a work that will be performed at the company’s office or any other location that may have a connection with the employer.
So much so that article 6 of the CLT says that it “does not make a distinction between the work done at the employer’s establishment, the judgment debtor at the address of the employee, and in the distance, as long as they are featured on the premises of the employment relationship”.
Both the home office and remote work have benefits for both employees and companies, such as the ability to hire talent from anywhere, and can even provide some reduction in the cost of the company.
In order to adopt to the home office, as well as the need to have the roles and functions that are supported by this model, a company needs to make sure that you have an internal policy rules in relation to the working out of the head office of the company is well-defined, and built-in by the staff.
Although seemingly these methods seem to be the most cost-effective for the employer, it shall bear all the expenses incurred in connection with its business, which includes the activities that are conducted outside the premises of the company (such as from home to the office and distance). The computation of this expense is taken to help the employee shall be considered to be on the rise in the costs of an employee with internet access, internet service provider, your computer, as well as all of the cost involved, that is to say, the whole of the infrastructure for the employee to work properly in the remote mode.
With regard to the rights of the Law no. 12.551/2011 that equated the two brothers carried on by means of the computer to that exerted by face-to-face, by changing the wording of article 6 of the CLT, that is, an employee who works in the home office, from the legal point of view, the same rights and responsibilities as any other employee of the company who provides services in a manner that face-to-face.
In this regard, the challenge for business and it managers is that employees who work remotely, and be able to get a good result. For this reason, the usual way is to work with the education, training and the methods to improve the characteristics such as self-discipline, organization and the ability to make decisions, and be comfortable working alone. It’s not all about charm, and the people who work in the scheme, the home office require higher doses of motivation, in addition to a relevant decrease in the release (the reason for this is that it makes companies such as Disney world, stay with the home office. With regard to the decline in creativity, a few companies have offered to their employees, incentives to hospitals that they have to keep their creativity is enhanced!
It is a fact that the changes in the labour market is leading companies to adopt new ways of working, and home-office have been one of them. However, it is still in the process of adaptation. With the enactment of the labour in the fall of 2017 (lei nº 13.467/2017, and the law of 14.442/2022), and the companies that have won the most flexibility to make necessary adjustments to the model of remote working.
Remote work has also been included in the exception to the scheme of the work day to the article 62 of the AND, or, may be, due to the difficulty of control, there is no entitlement to payment for overtime work, an additional night, etc.
However, according to some of the precedents of the TST, if there is any means of control of the employer of the day is to recognize the information. In this mode, the control register has been maintained, and the results are measured by means of tools for the evaluation of the performance and of the delivery supported by the leadership to ensure that the quality of the work.
The home-based work and in the home office, to meet the new challenges of globalisation, because, come on its the nature of the flexibility of time, it is not the requirement of a physical space with a fixed, and, through the use of technology makes it possible to reach the extra-territorial, however, it should be well planned, and weighed in order to be able to draw the best out of each and every one of the models (for remote face-to-face, or hybrid).
Betty’s No Lordelo, a lawyer with a bachelor degree in Law with an emphasis in tax Law from the University Presbyterian Mackenzie (2022), and which is registered at the Ordem dos Advogados do Brasil, São Paulo (OAB/SP) (2022). A lawyer have Associated with it.
Leonardo Theon in Paris as well as in Europe, with a degree in law, with an emphasis in business law from the University Presbyterian Mackenzie (2012), which was registered at the Ordem dos Advogados do Brasil, São Paulo (OAB/SP) (2012). A post-graduate degree and an Expert in Corporate Law and Mergers and Acquisitions at the Law School of São Paulo da Fundação Getulio Vargas (2014) Master’s degree in Law and Political economics, Universidade Presbiteriana Mackenzie, brazil (2017), the author of many books and articles, a speaker, a teacher at the undergraduate, MBA, and Executive Education in the FIPECAFI, a member of the bar Association of São Paulo (AASP), and the Chairman of the State committee of the Business Law of the FEDERAMINAS. A founding member of the TM is Associated with it.
Os desafios de pais e filhos que resolveram empreender juntos
Neste dia especial, nosso sócio fundador, Leonardo Theon de Moraes, foi citado em matéria sobre “Os desafios de pais e filhos que resolveram empreender juntos” da Revista Pequenas Empresas & Grandes de Negócios.
Confira a entrevista na integra: https://revistapegn.globo.com/Administracao-de-empresas/noticia/2020/08/os-desafios-de-pais-e-filhos-que-resolveram-empreender-juntos.html