Brazilian employment agreement can be defined as a tacit or express agreement corresponding to an employment bond. The regulation of labor affairs in Brazil rules by the Federal Constitution, the CLT (Consolidation of Labor Laws) and other complementary laws, which aim to guarantee the rights and duties of employees and employers.
Employment agreements are responsible for setting the links between parties, and knowing the main modalities of employment bond is very relevant for companies that wish to operate in the country.
The employment agreement does not need to be written; it can be verbal or even tacit, as long as the requirements of the employment bond are present, being those: (i) work performed by an individual, (ii) habituality, (iii) personality, (iv) onerosity and (v) subordination.
The main Modalities of employment agreements are:
Employment agreement with no term.
The most usual modality of employment agreement rules with no term. Whenever the employee and the company do not agree on any other modality, the agreement between them will be considered as an agreement with no term.
Employment agreement with fixed-term.
There are some hypotheses where the hiring of employees for a specific period may occur, so the employment agreement has a date to start and end.
a) Service of a transitory nature or that justifies the predetermined term. For example, the company needs to hire an employee to build a shed. In this scenario, there is no need to sign an agreement for an indefinite period, since the service has a date to start and end.
b) Transitional business activities. The transience here is related to the economic nature of the company and not to the service provided, for example, the company that works only during festive periods.
c) Experience agreement. When it is necessary to check the employee's technical skills.
The fixed-term employment agreement can be executed for a period of up to two years, with the exception of the experience agreement, which must obey a limit of 90 days.
Employees may be hired for a specified period outside the hypotheses above if this hiring represents an increase in the number of employees and if this possibility is foreseen in a collective agreement or convention.
Temporary employment agreement
In this modality, the employee is hired by a temporary work company and is made available to a company that has a transitory need.
The borrowing company can hire the temporary work company to provide services related to its middle and end activity, without an employment bond between the borrowing company and the employee in any of these cases.
The temporary agreement can occur for a period of 180 days, but if the previous conditions that gave rise to the agreement continue, this agreement can be extended for another 90 days.
Intermittent employment agreement
This modality of hiring was made available by the labor reform in 2017 and shall have a written agreement between parties
The main characteristic of this modality is that the service provision is not continuous, it can occur with alternation of months, days and even hours, and the employee does not receive a salary for the period of inactivity.
Another important difference is that the employer will not be able to demand exclusivity from the employee in providing the service. The employee may provide services to other companies, whether they are in the same economic activity or not.
It is important to remember that employment agreements can still provide conditions that meet the best needs of the parties, such as hourly position, meal and rest breaks and the place where the service is provided.
Finally, the 2017 labor reform created the figure of the employee known as hypersufficient. With this employee it is possible to negotiate the terms of the employment agreement more freely, as long as the legal limits are respected.
The company needs to know the employment agreements modalities and the possibilities they bring to be able to decide which model is best suited to its business and thus reduce both its hiring costs and the possible liabilities that a wrong hiring can seek.
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Jorge Müller Camatta
Post-graduate degree in Law and Labor Relations, São Bernardo do Campo Faculty of Law.
Gabriel Burjaili de Oliveira
Post-graduate degree in Civil Procedure, Civil Law and Contracts from Escola Paulista de Direito (EPD), master's degree (in progress) in Civil Law (Environmental Civil Liability) from USP, and specialization in Environmental Law, Corporate Law, and Governance and Succession of Family businesses.
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