International Labor & Employment Law Committee Newsletter

Issue: September 2012

Editor: Tim Darby | European Editor: Paul Callaghan | Latin America Editor: Juan Carlos Varela | Canada Editor: Gilles Touchette | Asia and Oceania Editor: Ute Krudewagen

Brazil, Page 1

Innovations in New Law on Professional Drivers Suspended Immediately After Enactment

José Carlos Wahle, Veirano Advogados, São Paulo, Brazil

Law 12,619, enacted on April 30, contains numerous changes to regulations governing professional drivers and their respective employers. However, on July 31, after riots and road barriers set up by truck drivers, the Ministry of Labour held an emergency meeting with the labour unions and the transportation companies and decided to suspend some items of the Law for further discussion and for deliberation by the Federal Agency of Road Transportation (ANTT).
Among the main innovations were the following:

  • Drivers are not liable for damage caused to the employer that does not result from their own negligence.
  • Professional insurance is needed for drivers, paid by the employer.
  • Drug and alcohol testing is established, and refusal to such tests is subject to disciplinary action.
  • Detailed regulations are established regarding work hours, breaks and time and conditions for rest, including different situations of standing by and related compensation.
  • There is a prohibition on compensating drivers for mileage, time elapsed, nature of transported goods, or anything that could affect safe driving.

While the innovations seem to be valuable improvement of work conditions to the benefit of all of society, the unions and the companies claim that the law contains significant loopholes and does not entirely correspond to their needs. On one side, the unions claim that the Brazilian roads do not have sufficient facilities designated to accommodate drivers for the new mandatory stops, which would not only result in inappropriate conditions for resting, but trucks parked by the roads could also represent risks of traffic accidents and cargo theft. On the other side, transportation companies claim that the regulations on permits need improvement.

The ANTT is revising the regulations and is gathering suggestions and recommendations from both sides. The period for suggestions for revisions is still open.

Ministry of Labour Interpretation of One of the Loopholes of Extended Notice Law

José Carlos Wahle, Veirano Advogados, São Paulo, Brazil

On May 7, 2012, facing numerous questions coming from workers and companies about the introduction of an extended notice period for terminations which varies based on years worked at the firm concerned, the Ministry of Labour issued Technical Note 184 to publicize its interpretation of Law 12,506 on notice periods, enacted October 11, 2011. According to the Note, the employee can only be required to continue to work for 30 days after the notice of termination, and the company must indemnify the remaining term.

While the government thus has acted to resolve an uncertainty in the law, some legal uncertainty remains because the Technical Note is not a proper regulation issued under the Law. For the avoidance of further uncertainty, Labor unions and company associations have been advised to develop a consensual approach to the issue through specifying notice practices in the applicable Collective Bargaining Agreements.

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