Apostila de D. Labour OAB / RJ

8/9/2019 Apostila de D. Labour OAB / RJ

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Course FragaEmployment relationship of CLT Subjects Ratio Employee Employment Bilateral Relationship (where individual) - art. 3 CLT Employer - Company - individual (natural) or legal - art. 2 CLT exception is the Outsourcing, when we'll have three people. IUS postulandi - the right to nominate himself without a lawyer. Still exists in the legal world, has not been revoked. Section 133 CF/88 Requirements forthe Employment Relationship: 1) Personality - the employee must provide services

in person, without replacement, unless the employer. The employment contract ofthe CLT is very personal view personal = 2) charging for - does not work for free. Work is under consideration payment = = salary (paid in cash - or may have pecunia utilities - fresh = salary when offered the very value => gives up food,transportation, clothing). It is a part of the salary of the worker at least 30%of salary should be in money. Article 32, CLT only when the employee works andearns pecunia not only housing, food ... does not cease to be employed, is onlyearning wrong. 3) Usually diarist: who works once a week at a different house. Once a week in a family has no ties, is not to be Domestic Domestic got to work at least twice a week. Diarist is not domestic. Employees of CLT - Requirements -To be inserted in the company's core business - Have no event, not be sporadic- not only who is housed in the activity order is employed, but labor is also ne

eded permanently. 4) Subordination: it is legal, it follows the law, which givesthe employer the power to command and the employee the duty of obedience. Powerof command - Ius variandi

If there is excess, use the right (power) to resist (Ius Resistentiae).5) The employee will not risk the business: Variable, Fixed and Mixed Running the risk is spread damage. Who gets to committee, get in different ways, not risk,because who wins a variable has at least minimum wage. Any and Autonomous = / =CLT The five conditions must be present to characterize the contract work of the CLT. - The activity may be nonprofit, but if they hire employees become company (employers) for labor. Article 2 1 2 CLT: Holding = parent that has subordinate companies forming a business group with diverse legal personalities. This casethe responsibility is joint, it can be charged to any group. Jointly = no prefe

rence order. Solidarity comes to the labor area. Area depend on social securityand tax law specifies.

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Farm Worker - Law 5889/73 After CF/88, came to have the same rights as urban workers. Works in the field (livestock or agriculture). Article 7, XXI CF/88 urbanand rural workers have the same rights, observing the peculiarities. The Workerranching or farming until the 1st transformation. The rural worker works only until the 1st transformation, industrialization and even after it becomes urban. Peculiarities a) Advance Notice: Advance notice of termination of the contract toan indefinite term. It is given when there is no reason (breaking unmotivated).

Employee and employer has the obligation to give notice. Can be proportional tolength of service, but must be regulated by law. The notice is 30 days.

Art. CLT 487 - waived by CF/88.There is no advance notice of eight days. Warning - AP Employer to the Employee:The employer chooses whether to be worked or compensated. Contract (CT) only ends at the end of the AP. OJ says that the last day the contract is the last dayof the AP. AP worked: the employee chooses reduction of two hours or not work 7consecutive days - Article 488 CLT This two hours will be chosen by the employer, seven days too. If the employee does not accept = cause. Employee Employer: The employee chooses how it will give notice to the employer, it will be worked orcharged. Work is usually no reduction. The discount is 30 days from the termination of the employee. Purpose of the AP - the employee get another job - waiving

AP - opens the hand of the remaining value of the AP. Working with sloth - justcause termination of the AP. Termination Indirect (just cause of the Employer)- Section 483 CLT has effect similar to the cash dispensing unmotivated. The AP


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used to give rights to domestic but serves as a manual of instruction. Cash, the household earns 30% on earnings in nature it can earn a maximum of 70%. The domestic worker may laboring home winning food etc, without making money, gainingonly be wrong. Receive until the 5th day of the subsequent month. 4) Continuity- acknowledges the employment relationship when you work two times per week prevailing understanding of the diarist River TRT won per day (not domestic), cleaner works once a week (not home) 5) Residual Scope - is not only home. It is every

thing that is not their job. Journeyman, piscineiro, helicopter pilot, butler, chauffeur private. Note: When the domestic work at home and after some time working in the same trade is only employed urban and non-domestic.6) Non-Profit (economic) - is not that the home had no activity for profit, the employer does not have economic order. A home that is warm is not tame, as the employer uses their labor for profit, develops an economic activity. Law of Domestic

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Art 7, single CRFB/88 a) Item IV - Minimum Wage was a right of CLT, was the regional minimum wages. The minimum wage is the national minimum wage. The CRFB/88 says SM is for family. Items in the SM. 1) Housing 2) Food 3) Entertainment 4) Ed

ucation 5) Health 6) Hygiene - bathing 7) Clothing - for the clothes 8) transportation - take the bus 9) Social Security - retired b) Item VI - Irreducibility Salary - does not reduce salary and ready. Nominal Reduction - reduces the denomination (reduced to name came to $ 500.00 receive $ 400.00). Real reduction - maylose the purchase (the maid hired in 1998 and still keeps the same minimum wage). May reduce if by collective agreement (CLT) - Business has no collective bargaining agreement, so can not reduce the salary. The ban is to reduce monetary (nominal), but is flexible. Household has no AC or DC, his salary is irreducible without exception. Household is entitled to minimum wage in the category? Ans: No, in accordance with Article 7 CRFB unique, the item V is not part listed in therights granted to domestic. In Rio de Janeiro, the Governor has not enacted a state minimum wage but set a wage floor, which can not be less than the nationalminimum wage. In practice, Social Security lowered the service order (SO), the p

ension payment should be about the state minimum wage R $ 326.00. c) Item VII -13 Christmas bonus or salary or Troezen Law 4090/62 and subsequent amendments. Two installments: 1st Installment: Advance - between February and November, halfof the 13th salary. If you work in the month at least fifteen days, is entitledto 13 of salary. The advance must be paid between February and November. 2nd Installment: Supplement - must be paid by the 20th of December. The employer can pay the 13 on a single parcel until November, but can not pay off in December. Examples: Household Income $ 1,000.00 1st installment - June = $ 500.00 in September increased R $ 1,200.00 2nd installment - 5/Dez = R $ 700.00 On 10/12 increasedR $ 1,300 , 00. If wage increase in 10 days after the payment of 2nd installment will be a difference that can be paid by the tenth day of the following year.In January the employee may request an advance (1st installment) of the 13th salary, along with the holidays. Law 4090/62 - minimum wage.

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d) Item XV - Renumbered Weekly Rest (RSR) or Renumbered Weekly Rest (DSR) or weeklies - preferably on Sundays if the household works in his day of rest must earn double. RSR - disciplined gain folded Law 605/49 Holiday - was not applied todomestic CRFB/88 - Home is home. The constitution regulates the RSR at home andnot giving holiday, or household is not entitled to the holiday. If the household used to play on holidays, the employer has no right to demand work, the principle of most favorable condition, once given can not be taken due to the Principle of Law more Beneficial - (whom he can not stop giving, and has that keep on giving). e) Item XVII - Holiday + 1 / 3 of domestic holidays are 20 working days.

If you work 02 times a week, the days are numbered with two each week. Domestic:f) Item XVIII - Maternity License = 120 days - Law 8213/91. The license can be28 days + 92 days (including day of delivery) or 28 days plus delivery over 91 d


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ays. Stability of Pregnancy (some call it guarantee stability of the pregnant woman). Article 10, II, B ADCT Article 7, I CRFB/88 Guilt aims - the employer threatens to dismiss the employee without knowing that it is pregnant and without that she knew. Having co resignation 03 months of pregnancy (used without knowledge of pregnancy), it returns to work, because it was stable for 03 months. Stability include the time of license. Article 71 of Law 8213/91 Remarks 1) The home can not be sent away in the 8th month of pregnancy, not because she is the holder

of stability but to enter the roles in the INSS. 2) The home is licensed, and no stability, and can not be fired during maternity leave. 3) Domestic stabilityis not when pregnant. 4) The home is licensed for 120 days and receives Social Security benefit. 5) The maid gets their own Social Security - Article 71-A onlyof the Law 8213/91.The maid's employer receives Urbana, which is reimbursed by the Social Security act of gathering. Sole Paragraph. The paid maternity leave referred to in this Article shall be paid directly by Social Security. Domestic canbe fired at any time, except when to take leave (eg home to eight months). Themaid has stability when pregnant, but can be fired when you make cause. To be considered household is what is written, if it falls "employed" is not domestic.

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Specified in the proof must come home. Adoptive Mom (Maternity) - art. 71 of Law8213/91 - novelty in 2001 and 2002 welfare law Up to 1 year of age = 120 days; From 1 to 4 years = 60 days; From 4 years to 8 years = 30 days. Article 372 andfollowing CLT => protection of women. Article 396 CLT => Delay pair breastfeeding. Section 392-CLT => copy the Social Security Law. A licensed home when it cannot be fired. Is rejected, receiving the benefit of the INSS. g) Item XIX - Paternity Leave

Article 10, 1 ADCT05 days (if born on Friday evening, the father returns to work on Wednesday - says to the day of the event); regard to the weekend and holiday. Adoptive fatherhas no license The CRFB/88 equaled the natural or adoptive children, not the cou

ntry. The teacher has 09 days license for marriage and death (father, mother, wife and children).

h) Item XXI - Warning Proportionality of 30 days (minimum) in accordance with law. Art 7th century, CRFB/88 There is advance notice of 8 days as art, 487, I CLT. Is usually given in the contract to an indefinite term, with 30 days notice. According to art. 2 CLT Employer has the power to command. The employee chooses between not working 02 hours or 07 days, but it's the employer who decides when the employee is going to take two hours or when the will takes 7 days. Article 488, single CLT. Note: Excludes when the paragraph refers to a single day, this option no longer exists. If you get another job during the Advance Notice, it is terminated. The employee subject option of accepting the withdrawal of the employer and vice versa. The household has no reduction of two hours because it has the working day. The only way is not working 7 consecutive days. Rural is one dayper week. The employee who makes soft body is called a "sloth." i) Item XXIV - Retirement - Law 8213/91 The household is entitled to Retirement. Art. 7, XXIV CRFB/88 does not explain how retirement. The household is entitled to retirement,as well as their integration into Social Security. The CRFB/88 says the home isinsured mandatory. Two rights that the household can not lose, because I have them: Maternity , Retirement. The domestic aid disease do not have any pension rights. Law 5859/72 - Law on Domestic - gives the home:

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CTPS - 48 hours for signature of the worker, under the responsibility of the employer. INSS Holidays 20 working days; Salary (at least the minimum of pecunia =


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30% and 70% fresh).

Article 7, III CRFB/88. Guarantee fund is compulsory for urban and rural areas.The Article 20 of Law 8036/90 - specifies the chances of lifting the FGTS. Gaintwo more rights in 2001: FGTS optional - Law 8036/90 and Article 3-The Unemployment Insurance Act 5859/72 - Art. 6 - A, 1 of law 5859/72. Unemployment insurance- have to be collected as FGTS home for at least 15 months in the last 24 month

s. Just Cause - are used the requirements of Art. CLT 482, with the exception ofparagraphs c, g and the single . Just Cause Employer - it uses the Civil Code, since it applies to art. CLT 483 - contracts - except for the pact is not fulfilled. The Employment Contract art. CLT 442 - is bilateral (employee (individual ornatural) => employer (individual or collective enterprise)). Exception: Outsourcing (intermediation of labor). The employment relationship exists between the employee and the company that hires him, not between the employee and the companywhere he serves. Among the companies there is contact of a civil nature. Precedent 331 TST. Chance to see Law 6019/74 Outsourcing Two species of the employmentcontract: Article 443 CLT Undetermined - no date Determined to leave - is the contract term, with a date certain to end, which can be date or event. Determinedthe term itself - art. CLT 445 - maximum of two years (may be extended for a ti

me within the maximum). For example: 1 year + 1 year 1 year and 6 months + 6 months + 6 months 6meses Having extension for more than once seen the contract indefinitely. Length of Experience - art. 445 single CLT For example: 45 days + 45 days + 30 days 60 days 30 days 30 days + Having extension contract becomes indefinite.The contract period of 90 days, extendable. Right answer in the proof of OABthat differed was the comma. The contract Term: art. CLT 479 Employers who break the contract must either compensate the missing half of the period. Article 480 CLT - the employee who breaks the contract term has to indemnify the employerfor damages. 1 - is at most half of the period lacked.

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Clause Assecuratria the reciprocal right of early termination. It is a clause tha

t ensures employee / employer to terminate the contract before it expires. If there is a clause, it gives notice, since no one pays half of what it should not indemnify the loss. Hours of Work Article 7, XIII CRFB/88 8 hours daily and 44 weekly hours => Full-day Ability to hire part-time - work is no more than 25 hoursper week (art. 58) Rule prohibitive - can not work overtime (art. 59, 4) Who isthe full time you can spend for the part, provided with consent of the employerand it is provided in AC or DC. Proportional gains for the officials and working full day. Vacations - the period in accordance with the shift worked. (Art. 130) Days of Holiday Item Weekly Hours of Art 130A 18 22 to 25 I 16 II 14 20 through 22 15 through 20 II 12 15 IV 10 to May 10 to 10 V 8 = or


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sed action by the employer to establish just cause for permanent employee), it is necessary to: - Stable Decennial - art. CLT 492 - (there is in practice after10 years, could only be fired for cause)

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Trade Union Leader - art. 8, and Article VIII CRFB/88. 543, 3 CLT - (which is stable since the registration of the application until one year after the mandate), Member of the National Social Security - art. 3 of Law 8212/91;

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Elected director of the Cooperative - Law 5764/71 art 55 equals art. 543, 3 CLT

The State Council of Guardianship Fund (?) - Requires union survey. Stability isvery personal (pregnant woman, injured), but it is very personal representative

of the employer. And alternates representing the employees have stability. Whenthe stable is dismissed without observance of Just Cause, it Reintegration; compensation is 2nd option - when the judge decides. The compensation are wages towhich entitled in the period he was sent away. The union leader has been stablesince the registration of the application. The union must provide 24 hours of enrollment. It is stable up to 1 year after the mandate (art. 534, 5 CLT). Do notget stability in the Warning or the Contract Term. When the Union notifies the Employer on the Registration Application, puts the date and time. There are threeways of setting up Collective Rights: 1) Collective Agreement (agreeing parties) - Union of Employees X one or more companies. 2) Collective Agreement (parts Convenient) - Union of Employees Union of Employees X Definition of Agreement andConvention Article 611 CLT - There is no vested right against the collective rule. - If no extrajudicial action is necessary to collective bargaining, collecti

ve bargaining proposal Courts - Union of Employers' Unions Employee X's court. Their standards are valid up to four years. Revisional action - it is when the standards are not agree more - art. 114, 2 CRFB/88. You only need to disagreementseconomic. There are disagreements in legal (law enforcement). Generates an economic law.The legislative powers of the Labor Court in this collective bargainingeconomic. Review - Art 873 CLT - Action Review after a year of bargaining. Amendment 45 - to enter the bargaining agreement must have art. 114, 2 CRFB/88. Onlyrequired in the bargaining power of economic, there is this other bargaining that is a legal (only serves to enforce the law). Where is the Regulatory Act of the Judiciary? It is the divergence of economic nature. What's In Common AC, DC, DC? Resp.: The union of employees. The STRIKE CRFB/88 Article 9, authorizing a strike. We need a law to regulate - Law 7783/89

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The employer must be notified normally within 48 hours if the service is essential - 72 hours. Arts. 3 and 13 Law 7783/89 - The department must ensure the minimum essential for the population. - The contract is suspended in the strike are not perceived in the strike. - If it is judged and the judge have to pay wages was not suspended the contract has been interrupted - There can be no waiver or hiring - Arts. 7 of Law 7783/89 - In the case of essential services, there may behiring. Ending the strike, the replacement shall be dismissed and the employee returns. - LOCK OUT - is stopping the employer shall prevent the negotiation of claims of employees. Arts. 17 Law 7783/89. - Military has expressly prohibit thestrike. - Each class of TRT is composed of five judges, a minimum quorum of thre

e judges - each class of the TST is composed of five judges, a minimum quorum ofthree justices - The Supreme Court has jurisdiction over the resources of the Justice of the work, but not Organ same. - Before the EC 24/99 there were joints


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of conciliation and trial, which consisted pro robin one judge and two judges classicist (who were idiots.) - Where there is no stick work, the judge shall be the judge of the civil court, however, the appeal will be judged by TRT - art. 112 CRFB/88. Shares of original jurisdiction of the Stick - Labor Complaint - Judicial Inquiry - Notification Judicial - Judicial Protest - Action Title Extrajudicial Execution - Regional Labor Courts - Every location has a TRT linked to it.Eg Acre joined with Rondnia, to the creation of 14 TRT, Sao Paulo has two TRTs -

art. CLT 674 - there are 24 TRTs. - They are formed by the Judges of the work (when promoted by seniority or merit or appointed). - RI, on an amendment to the regulations, c] stated that the judges of 2nd degree of the TRT are judges.

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The TRT is composed of at least seven judges - art. 115 CRFB/88.In TRT, the qualified judges and judges of the fifth constitutional, occupied the posts of classist.

Superior Labor Court - There is only one based in Brasilia - Composed by Ministers, who occupy the seats for promotion or the 5th Constitutional (MP or represen

tatives of the Bar). There are 27 ministers in TST - art. 111 CRFB/88. - In theTST, there are 5 classes, each class with five ministers and for it to work is the minimum quorum of three ministers. - It has jurisdiction over resources, which tried so reiterated become overviews - trial repeated appeals. It is the settled understanding. Not every scoresheet has binding effect. - Actions of originaljurisdiction of the TST: Writ of Mandamus (when the authority is constraining party TRT) Action Rescissory (tried to change regional). - Sections: Individual Disputes; Collective Disputes - The OJ trial is made of repeated actions. Regional Labor Court of the 1st Region - A total of 54 judges, who can work in Full, SEDI and the Gang.

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The chair is made by the President and Vice President, Internal Affairs has theMagistrate and Vice Magistrate. Powers of the President - Art 21:25 RI; Vice President - art. 30 RI of the Full Board - all the judges part. Allocation has to approve and modify the RI. Elects and invests the President and Vice-President and Corregidor and his Vice, and approves RI - art. 14 RI Special Body - art. 7 RI- President and Vice President of the Court, Magistrate and Deputy Magistrate and the oldest 11 judges that make up the Special Body. Its function is to choosethe dress of judges, gives ownership to new judges, sets criteria for promotion. Classes - have to judge the allocation resources. There are 9 classes - art. 11 RI. The TRT Rio does not create Precedents in Sao Paulo creates. Sections: Judge the actions: SEDI - Specialized Section on individual bargaining Actions originate SEDI Writ of Mandamus; Action Rescissory - art. 485 CPC Preventive Measures Habeas Corpus Composition of SEDI - art.9 RI has 18 judges Sedici - SpecializedSection on collective bargaining

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Composition of the Sedici - has 14 judges (President, Vice President more than 1

2 judges) - art. 8 RI

Prior Conciliation Commission - Article 625 A to 625 H CLT Trade Union or Trade


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Union Center (single group that make the defense of the category) Company or Group Company tries to make the agreement before the Judiciary Committee has to beequal (the representative employees and employers).

deadline 10 days to reconcile ..Outside the scope of Justice. It is necessary to pass through it (the Commission) before entering JT. If the term of agreement is not fulfilled, it is Action Ex

trajudicial Execution of Enforcement. If no agreement is issued a Statement of attempt at conciliation. If the agreement is not made in full, the term of agreement is issued with caveats. Because of the Prescription of two years (Biennial or extinct) the term of the process is suspended (limitation period) when the CCP. MS - judged by the section's sentence fits the MS error in judicando OrdinaryAppeal Writ of Mandamus = Error in Judgement - when authority co-actor injures right amount and certainly not supported by the Habeas Corpus Habeas Data, when action does not fit. Error In Proceeding Complaint Correicional = (RC). Error inprocedure - the judge reverses the proper order of procedure. The RC is an action, measure, co period of five days, tried by the Magistrate. The sentence fits Areg. Areg = Regimental Appeal - is the appeal of the sentence correicional - Art236 - IR A decision rejecting injunctive relief (in MS, Injunctive Relief) fits

Areg. Trial Judgement = Action = Trial Judgement Appeal

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The appeal shall review the matter, which has two judgments of admissibility: national court - one that gave the decision; judges whom - one that will examine observe the requirements of Appeal - Legitimacy and Interest = binomial - Timeliness, ie , every action has run. If you appeal and grievance has a term of eightdays. - Preparation Costs = / appeal bond (made by reclaimed). Are supported byclaimed, moreover, the appeal bond (bond) - is a real guarantee for the successful party. Who ever makes the appeal bond is claimed is observed at the ceiling for deposit. If the value is below the roof is collected in full, if higher, collect the ceiling. The amount is deposited can not be moved in order to be collect

ed in the FGTS account and is released by a charter by the judge. In the case ofinterest to the complainant and claimed to have recourse to Claimed bears the costs and deposits. - Regular Action - Stick to the TRT. Review both matters of fact as of law. Within 8 days. Procedure accelerated,: action up to 40 minimum wages. The ordinary appeal in this procedure is distributed directly to the Rapporteur dispensing Reviewer. The Rapporteur can only stay with the process by 10 days and include on the agenda for trial. The MPT is manifested in the trial, verbally. At the trial of the action, it gives the ruling. In the procedure accelerated, just the reasoning and the device. If maintained the decision of the courta quo is issued a certificate saying the decision was kept so plowing up the ruling. Section 895 (RO), 1 (accelerated, procedure) CLT

- Feature Review - TRT for TST - to take matters of law. Typical of the Labor Court. Within 8 days. Three matters of law. Offense offense against the law CRFB/88 Divergence Jurisprudential has relevance to social, political, legal or economic. Principle of Transcendence - give priority to these issues (relevance) - art. 896 In CLT accelerated, just enter the offense CRFB/88 and divergence with theTST summary - there is constraint of matter. = EQUIVALENT SUBSTITUTES

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Apostila de D. Labour OAB / RJ