On Wednesday (November 22), Justice Cristiano Zanin of the Federal Supreme Court (STF) overturned a ruling by the Superior Labor Court (TST) that recognized the existence of an employment relationship between a delivery driver and the Rappi platform. Zanin dismissed the relationship, arguing that the ruling violated precedents regarding the validity of outsourcing.
The Labor Court had declared that there was an employment relationship between the parties, understanding that the provision of services was personal, habitual (not occasional), onerous and legally subordinate — elements that characterize an employment relationship, according to the CLT.
The delivery platform filed RCL 63,823 with the Supreme Federal Court (STF). The company alleged a violation of the Court's rulings in ADC 48 (partnership between beauty salons and self-employed workers) and in RE 958,252 and ADPF 324 (both on the legality of outsourcing). It requested that the TST ruling be annulled and a new decision be issued, recognizing the commercial relationship between the company and the delivery person.
Zanin, the rapporteur of the complaint, highlighted that the Supreme Court, based on the constitutional principles of free enterprise and free competition, has already understood that it is possible to outsource any economic activity, overcoming the distinction established between core and non-core activities.
“Therefore, in this case, when recognizing the employment relationship, the Labor Court disregarded the legal aspects related to the issue, especially the precedents of the Federal Supreme Court that enshrine economic freedom and the organization of productive activities,” the minister stated.
This decision-making pattern has also appeared in cases involving app-based drivers. The ties recognized by the Labor Court between companies and other classes of workers, such as real estate brokers, franchisees, and consultants, have also been disregarded.
For Daniel Domingues Chiode, partner at Chiode Minicucci/Littler and the company's lawyer, the minister's decision stems from the full adherence of the thesis invoked by Rappi to the binding decisions already handed down by the STF and recognizes that the app-based workers regime is not governed by the CLT.
Rappi informed JOTA that "the sector is moving toward a new legal framework for the new way of working proposed by digital platforms, and it is important that precedents are respected in this process." "We are fully convinced that we are facing a new way of organizing service provision and technology, bringing specificities to this type of work that current legislation does not yet address," it added.
"Rappi appealed the decision made by the TST and, this Wednesday (22), Minister Cristiano Zanin overturned the decision and removed the link. According to the Min., by recognizing the link, the labor court disregarded the precedents of the STF that enshrine economic freedom and the organization of productive activities.
Rappi operates with a service model where delivery drivers are independent professionals, constituting a new type of work. Since its arrival in Brazil in mid-2017, Rappi has already begun its intermediation operation with a genuine focus on the well-being and work flexibility of its partner delivery drivers, always allowing them to connect whenever and wherever they want to fulfill orders placed by consumers.
We came to Brazil to stay, and to do so, we need the legal security of Rappi's business model and that of other platforms in Brazil to be guaranteed. Minister Zanin's decision, made today, is crucial for Rappi and the entire digital platform sector in Brazil. It is a step toward ensuring the continuity of this economic sector, which was essential during the pandemic and continues to be a fundamental part of Brazilians' daily lives.
The sector is moving toward a new legal framework for the new way of working proposed by digital platforms, and it's important that precedents are respected in this process. We are fully convinced that we are facing a new way of organizing service provision, with technology introducing specific features to this type of work that current legislation doesn't yet address.
We are deeply committed to supporting the process of creating regulations that grant additional social rights to app-based workers and allow digital platforms to expand their activities in Brazil safely and transparently across their ecosystems, generating income for all delivery workers and supporting the Brazilian economy overall.
Zanin's decision granted Rappi's appeal, which disagreed with the Superior Labor Court's ruling. In the Justice's view, the Superior Labor Court disregarded established case law on the matter. "The complaint is admissible, as the contested decision violates binding decisions of the Supreme Federal Court," the Justice wrote in his ruling, detailing that the Supreme Federal Court based its decision on the constitutional principles of free enterprise and free competition.
This is an innovative and important understanding for the Brazilian context, where the challenges of pacifying the discussion are so great that the Brazilian federal government created a Working Group to address the issue and advance a new legal framework. Within this Working Group, business associations that discuss the topic, such as the Digital Innovation Movement (MID), of which Rappi is a member, were crucial and active in the process.
Article originally published on November 22, 2023 on the JOTA website.
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