Alexandre overturns decision that recognized the relationship between app driver and driver

The relationship established between the driver and the app-based transportation platform most closely resembles the situation provided for in Law 11,442/2007, which regulates the activities of independent transporters and determines that their relationship with service recipients is of a commercial and not employment nature. 
 

This was the understanding of Minister Alexandre de Moraes, of the Federal Supreme Court, to overturn a decision by the Labor Court that recognized the employment relationship between a driver and the app-based transportation company Cabify. 

The Justice noted that the Supreme Court has already ruled that Law 11.442/2007 is constitutional, since the Constitution does not prohibit the outsourcing of core or non-core activities. He also noted that the Supreme Court's case law is firm in its view that alternative forms of employment are lawful. 

“The contested decision, therefore, by recognizing an employment relationship between the partner driver and the platform, disregards the conclusions of the Supreme Federal Court in the judgment of ADC 48, in ADPF 324, in RE 958,252 (Theme 725-RG), in ADI 5835 MC/DF and in RE 688,223 (Theme 590-RG), which allow for different types of contracts that are distinct from the traditional structure of the employment contract governed by the CLT”, it stated when annulling the contested decision. 

"The decision sets a new precedent for all cases pending in court. We decided to appeal the decision to the Supreme Court for a resolution, as there is no specific rule on the matter," explains Daniel Domingues Chiode, partner at Chiode Minicucci Advogados and lawyer for Cabify. 

Attorney Hugo Luiz Schiavo, partner at AC Burlamaqui Consultores, explained that the decision demonstrates that Minister Alexandre de Moraes concluded that the ordinary courts are competent to judge the case, thus endorsing the STJ's 2019 understanding that this type of legal relationship is inherent to the so-called sharing economy and the digital intermediation contract is of a civil nature. 

“The impact of the decision is important because, if the same understanding as the STJ is established in the STF, the adoption of an opposing understanding by the Labor Court will be directly subject to revocation by complaint to the STF,” he considered. 

Mauricio Corrêa da Veiga, a lawyer specializing in labor law and a partner at Corrêa da Veiga Advogados, in turn, stated that the decision respects the STF's own jurisprudence in the sense that there is a presumption of legality of the commercial contract, which, consequently, can only be dismissed by the ordinary courts.

Article originally published in Consultor Jurídico (ConJur) on May 24, 2023.