In February, the Supreme Federal Court (STF) will analyze the Superior Labor Court (TST) decision that recognized the link between the delivery person and the app.

The Supreme Federal Court has scheduled for its second regular session of the year, scheduled for February 8, the analysis of a complaint that deals with the employment relationship between delivery drivers and a meal delivery app.

The case was on the agenda of the court's 1st Chamber, but was sent to the Plenary so that the panel could respond to what the ministers consider to be repeated non-compliance with Supreme Court decisions by the Labor Court.

This is because, on several occasions, the court has established that constitutional protection of labor does not require that any and all paid services constitute an employment relationship. It has also ruled that any activity, whether a means or an end, can be outsourced.

Such precedents were established, for example, in ADC 48, ADPF 324 and RE 958,252, which decided precisely on the possibility of outsourcing any form of division of labor, regardless of the corporate purpose of the companies involved.

The specific case to be judged is a decision by the 2nd Panel of the Superior Labor Court that ordered the Rappi platform to recognize the employment relationship with a delivery driver. The reporting judge is Justice Alexandre de Moraes.

Statement by the PGR
The Attorney General of the Republic, Paulo Gonet, declared that the complaint was upheld, stating that there was a “dissonance” between the TST’s decision and the Supreme Court’s jurisprudence on the matter.

"The decisions challenged in these proceedings deemed an employment relationship, in the form of an intermittent contract, necessary between a motorcycle delivery driver and the brokerage app. This conflicts with the Supreme Federal Court's understanding regarding the constitutionality of placing services brokered by digital platforms outside the scope of the Consolidation of Labor Laws (CLT)," the Attorney General stated.

Daniel Domingues Chiode, Rappi's lawyer and partner at the Chiode Minicucci / Littler law firm, told the online magazine Consultor Jurídico that he hopes the Supreme Court will issue a summary ruling on the matter, so that there is a definitive answer.

"With the opinion of the Attorney General's Office, and with a two-thirds vote of the full court in favor of the non-existence of an employment relationship between app-based drivers and workers, it is expected that the Supreme Court will decide the matter definitively and bindingly, with the possibility of issuing a binding summary with a thesis to that effect. The issuing of a binding summary may even be initiated by the Attorney General's Office or the justices."

Supreme Court and Labor Court
Although the analysis is based on a complaint, the case is important because the ministers must once again comment on what they consider to be repeated non-compliance with their decisions by the Labor Court.

Before ordering the trial to be sent to the Plenary, the 1st Panel unanimously overturned a decision that recognized the employment relationship between a driver and the Cabify app.

In the same session, the panel notified the National Council of Justice to conduct a survey of “repeated” decisions by the Labor Court that are in breach of Supreme Court precedents.

In the judgment, the ministers stated that the court is receiving an increasing number of complaints because the labor courts insist on disregarding the STF's jurisprudence.

Minister Luiz Fux said at the time that if the Labor Court continues to ignore the rulings, the court will need to take action. He asked Alexandre to inform the CNJ about what he called "dysfunctionality."

"This matter is more than settled. It's not at all commendable that we have so much to do and so many complaints. I understand, even as a point of order, that the National Council of Justice should be notified and that we can return all complaint cases so that they can apply the jurisprudence of the Supreme Federal Court," Fux stated.

Minister Cristiano Zanin also highlighted that the Labor Court disregarded Supreme Court decisions when recognizing the link, especially precedents “that enshrine economic activity and the organization of productive activities.”

"These precedents consider other forms of organizing production and labor force agreements to be lawful. I don't see a typical CLT activity relationship, but rather another form of hiring, which may eventually merit new legislation to regulate the matter, but not in the form of the CLT."

Article originally published on January 28, 2024 on the CONJUR website.