1st Panel of the Supreme Federal Court denies link between driver and app

The 1st Panel of the Supreme Federal Court (STF) denied an employment relationship between a driver and the ride-hailing app Cabify—which has ceased operations in Brazil. This is the first panel decision. Until then, there had been only single-judge rulings (by a single justice) to the same effect. Now, attention turns to the STF Plenary. Yesterday, when announcing the outcome of the trial, the reporting judge, Justice Alexandre de Moraes, ordered that the other appeal on the docket be transferred for review by all justices. The case (Rcl 64018) concerns Rappi. The issue is important. Today, there are at least 1.5 million app drivers, delivery drivers, and motorcycle taxi drivers in the country, according to the Institute of Applied Economic Research (Ipea). And nearly 30,000 lawsuits on the matter are pending in the Labor Courts, with a value exceeding R$3.4 billion, according to the jurimetrics firm Data Lawyer Insights.

At the Supreme Federal Court (STF), the justices analyzed a complaint against a decision by the Regional Labor Court of Minas Gerais (TRT-MG). In July, Justice Alexandre de Moraes, when analyzing a request for a preliminary injunction, had already denied the employment relationship, suspending the decision, which has now been confirmed by the 1st Panel (Rcl 60347). According to Moraes, this understanding applies not only to Cabify, but to all app-based companies—such as Uber, iFood, and 99. "Although the judges disagree ideologically and academically, these decisions are unjustified," he said, adding that the number of complaints before the Supreme Federal Court has already reached the level of habeas corpus petitions, and that over 40% are from the Labor Court.

O ministro afirmou no voto, que o STF já decidiu, em diversas ocasiões, que a Constituição Federal impõe a livre iniciativa na produção e não determina que toda prestação de serviços seja considerada relação de emprego — precedentes como o da terceirização (ADPF 324), dos contratos de natureza civil (ADC 48) ou de parceria entre salões de beleza e profissionais do setor (ADI 5625). Para ele, esses casos de aplicativos não englobam situações de fraude somente para não se pagar direitos trabalhistas e tributos. “Tem que ser comprovada a fraude. No caso do Uber ou Ifood, ele [motorista ou entregador] tem a liberdade de aceitar uma corrida, de fazer seu horário, ter outros vínculos. Não existe exclusividade”, disse. Em seguida, os ministros Cristiano Zanin, Luiz Fux e Cármen Lúcia acompanharam o relator. Fux destacou, ao votar, que houve uma primeira decisão do Conselho Nacional dos Estados Unidos para motoristas de aplicativo no mesmo sentido do posicionamento adotado pelo STF. E que o Brasil tem adotado o sistema de precedentes e, por isso, essas decisões devem ser obrigatoriamente seguidas pelas instâncias inferiores.

"Failing to follow these precedents sets a terrible example," Fux stated. "We're having a crazy time with the Labor Court's resistance to accepting the Supreme Court's decision," the minister added, suggesting that the matter be brought to the National Council of Justice (CNJ). Despite agreeing with the rapporteur, Cármen Lúcia expressed concern about the retirement of these service providers. "Although it's a concern for society, it can't be resolved by simply applying a model that doesn't fit this relationship. I panic when I think about what we're creating in 20, 30, 40 years, when they need it most," she said, emphasizing the importance of a full bench position on the matter. Lawyer and retired Superior Labor Court (TST) minister, Márcio Eurico Vitral Amaro, of Chiode Minicucci Advogados, delivered oral arguments in the trial on behalf of Cabifiy. He stated that the Supreme Court has demonstrated its commitment to the interests of society, such as recognizing that a couple isn't necessarily a man and a woman or recognizing the gender with which a person identifies. "These are difficult questions that aim to meet the needs of the moment," he said. Along the same lines, Amaro asserted, the issue of the employment relationship of app-based drivers should be addressed. "It's a difficult question, but the Court has already given a clear answer that there is no employment relationship in the classic form provided for in the Consolidation of Labor Laws (CLT)," he said. For attorney Marília Minicucci of Chiode Minicucci Advogados, who is also working on the case, the ruling made clear the need for the Labor Court to adapt to modernity and the new forms of work that accompany it, understanding and accepting that the provisions of articles 2 and 3 of the Consolidation of Labor Laws (CLT) are no longer sufficient to govern all employment relationships. "Drivers and delivery drivers on digital platforms have autonomy, not only regarding their working hours but also regarding whether or not they accept rides, which certainly removes them from the rigid framework of an employment relationship," she said. Meanwhile, Eymard Loguercio, a lawyer who advises workers at LBS Advogadas e Advogados, believes that the Supreme Federal Court (STF) has undermined the jurisdiction of the Labor Courts on issues that are still under debate in the Judiciary and in society. "This undermines the consolidation of the issue, to the detriment of people who work in these regimes without social protection." Loguercio believes the STF uses precedents based on similarity, which do not address the same situation as app drivers. "I continue to believe the STF is encouraging the filing of constitutional complaints by broadening its scope of review to include outsourcing cases and cases involving the hiring of individuals to perform services, which may or may not constitute a formal contract," he says. "This matter truly needs further examination, and I hope the full court can do so."

Article originally published on December 5, 2023 on the Valor Econômico website.