In fifth decision, Supreme Federal Court rejects the thesis of employment relationship between drivers and apps

On Monday, the 13th, Justice Gilmar Mendes of the Federal Supreme Court (STF) suspended yet another Labor Court ruling that recognized the employment relationship between drivers and Cabify. Over the past year, the STF has ruled against the employment relationship between drivers and apps in five rulings.

The first two single-judge decisions were by Minister Alexandre de Moraes and the other two by Minister Luiz Fux.

The most recent decision, by Gilmar Mendes, was handed down in Constitutional Labor Complaint No. 63,414, which questioned a ruling by the Regional Labor Court of Minas Gerais, in the 3rd Region.

Mendes emphasized in his decision that it is necessary to follow the case law (decisions already made by the court) on the matter. The same argument was also used by Justices Alexandre de Moraes and Luiz Fux when they ruled on the matter.

Attorney Daniel Domingues Chiode, partner at the firm Chiode, Minicucci Littler and lawyer for Cabify in the five lawsuits pending before the Supreme Court, states that Mendes' decision reaffirms the understanding that app workers are not included in the types of work regulated by the Consolidation of Labor Laws (CLT).

For Chiode, the series of STF decisions is more aligned with market developments.

"The CLT, in the Supreme Court's understanding, is definitely not prepared to regulate app-based work. As with other reforms, the Supreme Court, through its decisions, anticipated and established Regulatory Frameworks based on the Constitution for sensitive issues. This occurred with the labor reform, the electoral reform, among others," he says.

In September 2023, Minister Luiz Fux, also of the Supreme Federal Court, overturned two labor decisions that declared the existence of a link between app drivers and the Cabify platform.

Fux ruled that the recognition of the employment relationship disregarded the Court's precedents on the validity of outsourcing, which were established in the Claim of Non-Compliance with a Fundamental Precept (ADPF) 324 and in the Extraordinary Appeal (RE) 958252 (Theme 725 of the general repercussion).

In May and June of this year, Minister Alexandre de Moraes had already overturned a decision by the Regional Labor Court of the 3rd Region, which recognized that there was a direct relationship, of an employment nature, between the platform and the driver.

Furthermore, Cabify would be a transportation company, not a relationship intermediary.

In a preliminary analysis of the case, Moraes found that the TRT-3 decision differs from the Supreme Court's jurisprudence regarding the constitutional permission of alternative forms of employment, and cited ADPF 324, RE 958252, in addition to the judgment of the Declaratory Action of Constitutionality (ADC) 48.

Article originally published on November 14, 2023 on the Exame website.