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.
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.
Working on an early holiday: How is the payment of wages?
Your company will not stop on 05/25/2020? How is the payment of employee salaries?
First of all, it is worth remembering who determines how the working day of employees will work is the company itself.
According to labor legislation, as a rule, work on civil and religious holidays is prohibited, and the payment of wages for days worked as a paid weekly rest is mandatory.
However, in cases where it is not possible to “stop work” due to COVID-19, companies can summon workers on holidays, even during the state of public calamity.
The professional who works on the holiday is entitled to receive the day in double or a compensatory day off. Without prejudice to salary.
According to Law No. 605/49 “ ” in activities in which it is not possible, due to the technical requirements of companies, the suspension of work, on civil and religious holidays, the remuneration will be paid in double, unless the employer determines another day off”
It should be noted that the consolidation of labor laws (CLT) does not deal specifically with the theme of the holiday, since there is only a simple reference in Article 70, saying that holidays will be the subject of their own legislation, whose regulation occurred through law 605/1949, highlighted above.
Finally, it is necessary to respect all the benefits provided for in a collective agreement for a working day on a holiday, if the work actually happens.
It is illegal to prepay compensation due to the trade representative for unmotivated termination
The 3rd Class of the STJ, judged to be illegal contractual clause that provides for advance payment of compensation due to the commercial representative on the occasion of unjustified termination of the contract by The represented.
At the time of the trial, the court ruled that the compensation to which a commercial representative is entitled In case of unilateral termination of the representation contract should not be paid in advance, but rather at the time when the link with the represented company is severed.
In the case under analysis, a brush supplier from Paraná unilaterally broke a contract that it maintained for 13 years with a representation company. In the contract there was a clause that provided for the payment of compensation in case of unjustified termination — as mandated by Article 27, “i”, Of Law 4.886/1965 —, however, the represented company refused to do so on the grounds that it had already paid the compensation in advance, along with the commissions received throughout the execution of the contract.
The representation company then went to court, but was defeated in the first and second instances. The Court of Justice of Paraná understood that the advance payment was the result of an agreement and that during the term of the contract the representative never challenged the form of compensation.
On the other hand, the STJ understood differently. For the court, the advance payment was an irregular maneuver by the brush supplier.
“The obligation to repair the damage only arises after the practice of the act that causes it (by logical imperative), so that, before the existence of a concrete damage capable of being repaired — which, in kind, is the unmotivated rupture of the avença—, there can be no talk of compensation”
minister Nancy Andrighi.
Also according to the minister, the indemnity clause has a compensatory character and its payment in advance circumvents law 4.886/1965. Andrighi argued that if the defendant’s intention was to avoid payment in a single installment, she should have deposited the amounts in a linked account maintained for that purpose.
Thus, the court understood that there is an imbalance in the relationship between the represented and the representative and that, for this reason, it is necessary that the latter has some type of protection in order not to be harmed.
See the published judgment:
REPRESENTAÇÃO COMERCIAL
STJ: procedural deadlines suspended in July
The Superior Court of Justice (STJ) published on 09/06/2020 ordinance STJ/GP 210/2020, which suspends the procedural deadlines between 2 and 31 July. The period coincides with the vacation of ministers.
According to the ordinance, in civil cases, articles 219 and 224, paragraph 1, of the Code of Civil Procedure must be observed; in criminal cases, article 798, paragraphs 1 and 3, of the Code of Criminal Procedure.
After the holidays, the Judicial Year in the STJ will resume with a special court session on August 3.
Prt_210_2020_PREDownload
Dr. Leonardo, founding partner of TM Associados, is quoted in Bloomberg.
On 09/06/2020, our founding partner, Leonardo Theon de Moraes, spoke to Bloomberg, from New York, about how judicial activism in Brazil has influenced the suspension and closure of mining and meat companies in Brazil during the COVID-19 pandemic.
The article, entitled “Brazilian prosecutors begin to influence the commodities market in the era of Covid-19”, makes a contrast with the US, where authorities take measures to keep companies running while implementing measures to contain the coronavirus, while in Brazil, the courts accept requests from prosecutors to suspend or Close large refrigerators and mining operations in recent weeks.
As Leonardo pointed out, “what we have experienced in Brazil, even more so in this pandemic, is the growth of judicial activism, both by the courts and by prosecutors”
Check out the link of the integra of the matter below:
Do you know what EPC and EPCM – TURNKEY contracts are?
Contractual style of’ contractor ‘ establishes a larger set of obligations of the contractor
Since the celebration of the World Cup in Brazil in 2014 and until the present day, especially in the Government of Jair Bolsonaro with the increase in concessions for public services, oil and gas energy, EPC contracts have gained prominence as a priority of celebration because of the greater transparency and security in their execution.
How is the construction of airports, construction of solar parks, stadium renovations and large enterprises in Brazil? If you have thought about building contracts you are not totally wrong!
In Brazil, the classic figures of construction contracts have always been adopted, namely, the contract and construction by administration or at cost price. The contract is foreseen in the Civil Code and the construction by administration is foreseen in law n. 4.591 of December 16, 1964.
However, due to the growing infrastructure needs in Brazil, contracting parties began to use strange construction contract models that proved effective in other countries, such as the Engineering Procurement and Construction (“EPC contract”) which brings together various elements such as construction, commissioning, purchase and assembly of equipment, all in one document!
In Portuguese, the acronym EPC stands for engineering, purchasing and construction management. Regarding its concept, the EPC is a contracting modality in which the builder executes the project in its entirety, ensuring the integral execution of the scope, the elaboration of architectural and engineering projects, details and assembly schemes, in addition to all the basic services for the execution of the project: supply of labor, materials and equipment necessary for the realization of the activities.
Therefore, they are characterized by being contracts referring to the execution of large projects, high cost, long term planning and execution, specialized technical team and large number of suppliers.
It is precisely for these reasons that the term EPC is usually used as a synonym for Turn-key, a term already introduced in this article, since it is up to the owner of the work, after receiving the project by the contractor (“Epecista”[1]), only “turn the key” since the enterprise is in immediate operating condition.
Regarding their legal nature, the majority doctrine, such as that of Orlando Gomes[2], classifies “EPC” contracts as an atypical and mixed contract, since they do not fit into any of the contractual species disciplined by the Civil Code, but at the same time, it encompasses several typical contracts, such as that of construction.
On the other hand, Fabio Ulhôa Coelho[3], for example, understands that EPC contracts are equivalent to a large contract, involving from the development of the project to its execution, associated with the contractor’s obligation to obtain financing for the work and provide technical advisory services related to the implementation of the project.
Due to this impasse, it is possible to verify that the construction contracts and EPC have several points in common, however, their points of incongruity are more important than the characteristics that bring them closer.
In this tuning fork, we draw up an intuitive table that reveal your main disagreements:
Table 1 adapted table-elaborated by the author Clara Drumond Degrazia Ribeiro, 2018, PUC-RIO.
An interesting aspect illustrated in the table is that contracts under the EPC-Turnkey modality attribute most of the contractual risks to the contractor, or rather, to the “Epecist”. Consequently, this even concretizes the possibility of the “Epecista” to include in its proposal of services prices and extra deadlines for “congestion”, due to the imminent risks to the execution of the works.[4]
For experts, the great advantage of using this atypical contract is that everything is concentrated in the hands of only one supplier. Thus, the client only needs to run a single contractor company. Likewise, in case something does not go as planned, only one company should take responsibility before the contractor.
On the other hand, due to the possibility of including extra prices (increasing the cost to the customer), many companies are migrating to contracts called EPCM that indicate, in Portuguese, “engineering, purchase and construction management”.
It is also a Turnkey method. Despite the similar name, in this modality, the stages of development of the project and the materials necessary to carry it out are also present. However, this contract does not carry out construction, but construction management.
In other words, in the EPCM contracting modality, it is an activity that basically consists of Project Management. And from the development of the project, the client will hire the others responsible for the work.
In this case, the client continues to have to make all the contracts, but who supervises the works and manages them is the company contracted by the EPCM model.
As an example, in 2018, Poyry, an international engineering company, announced the signing of an EPCM contract for a large company in the food sector in Brazil. The scope included detailed engineering services, supplies and the management of the construction and assembly of a plant in the state of Santa Catarina.[5]
Finally, for a greater understanding of the topic, we separate some advantages and disadvantages of the two EPC and EPCM models that can be seen below:
Rafael De Sordi Barbosa Martins
Junior lawyer at TM Advogados and postgraduate at GV Law-Business Law.
Leonardo Da Vinci
Founding partner at TM Advogados and Master in political and Economic Law from Universidade Presbiteriana Mackenzie.
[1] Pecist: the contractor, the ” contractor”
[2] GOMES, Orlando. Work cited, P.468. In the same sense Leonardo Dias da Silva Telles, engineering contract. LTr, São Paulo, 2010, P.105.
[3] COELHO, Fábio Ulhoa. Course of Civil Law, v. 3. Saraiva, São Paulo, 2017, p. 46.
[4] for a better understanding of the topic, it is recommended: MARCONDES, Fernando. Themes of Construction Law: construction contracts, 2015.
[5] available at: https://www.poyry.com.br/not%C3%ADcias/poyry-anuncia-contrato-epcm-para-industria-de-alimentos-no-brasil
Bacen jud will be replaced by new platform in September.
It was announced by the Central Bank (BC) the development of Sisbajud (asset Search System of the judiciary), a new blocking system that will replace the Bacen jud.
According to the economic value, this electronic system of communication between the judiciary and financial institutions can also be used in the future for blocking cryptocurrencies.
The new system will make it possible to automate blocking orders, unblocks and transfers of funds to judicial accounts, since it has an “online attachment” system to the electronic judicial process (PJE)
According to the BC, Sisbajud is already in the testing phase that will last until the end of the year. The Bacen jud interface (layout) and the communication protocol were maintained during the testing phase so as not to cause impact throughout the process.
It is with great enthusiasm that Sisbajud is received by the various legal operators. One of the biggest problems experienced in the judicial process today is the delay in unlocking values, which in theory should occur within 24 hours as provided by the legislation.
As a curiosity, last year alone R$ 55,8 billion of debtors were blocked through Bacen Jud, according to the newspaper.
Check out the full sisbajud implementation statement by downloading the link below:
SISBAJUD-1Download
STF: it is Constitutional the incidence of ISS in franchise agreements
It is Constitutional the incidence of ISS-tax on services of any nature in franchise agreements. This is the latest decision of the STF.
As previously disclosed on our website, the STF plenary would decide for the constitutionality of the impact of the ISS on franchise agreements between the 22nd to the 28th of May.
And finally the decision came out. For the STF, the municipal tax is levied on franchising.
The issue was judged in the virtual plenary, in a vote that ended on Thursday, 28. The rapporteur, Minister Gilmar Mendes, was accompanied by Alexandre de Moraes, Edson Fachin, Cármen Lúcia, Luiz Fux, Rosa Weber, Ricardo Lewandowski and Roberto Barroso.
Minister Gilmar Mendes, rapporteur, voted to dismiss the appeal and fixed the following thesis:
“The incidence of tax on services of any nature (ISS) on franchise contracts (franchising) is constitutional (items 10.04 and 17.08 of the list of services provided for in the Annex to complementary law 116/03).”
Gilmar mendes
The full argument of the court was that it does not violate the constitutional text nor does it deviate from the current guidance of the court to charge ISS on franchise agreements. “It should be reiterated that franchise agreements are of a mixed or hybrid nature, which encompasses both obligations to give and to do”.
Gilmar Mendes was accompanied by Alexandre de Moraes, Edson Fachin, Carmen Lucia, Luiz Fux, Rosa Weber, Ricardo Lewandowski and Roberto Barroso.
You can read the integra of the decision by the link below:
ISS decision franchise agreements
TST: foreclosure clause inserted by the donor of the property does not apply in labor execution
On May 21, 2020, the fifth class of the Superior Labor Court (TST), ratified the understanding that the non-foreclosure clause inserted by the donor of the property has no applicability in the execution of Labor debts.
The context of the decision is based on a labor complaint in which, at the enforcement stage, the first-degree Court ordered the claimant to analyze the real estate registrations existing in the process and indicate which property or properties he intended to seize. However, it was found that half of the properties had been transferred to the partner through donation, with a clause of non-foreclosure registered before the proposal of the action. Therefore, the judge dismissed the application for attachment.
When examining the facts, the fifth class of the TST understood that the non-foreclosure clause does not prevail when it comes to labor enforcement, as provided for in Article 30 of the Tax Enforcement Law. In fact, Article 889 of the CLT provides that, in case of omission, the provisions of the law on tax executions must be applied.[1]
[1] to the procedures and incidents of the enforcement process, the precepts that govern the process of the Tax Executives for the judicial collection of the active debt of the Federal Public Treasury are applicable, insofar as they do not contravene this title.
Check out the decision:
Decision