With Christmas approaching, it is common for commercial establishments to resort to hiring temporary employees to deal with the increase in sales at this time of year. The practice is legal and the legislation establishes rules and rights for the worker. Your salary, for example, must be equal to that of a permanent employee who performs equivalent functions. Do you want to understand how this type of hiring works? THE Brazil Agency explains.
Temporary work is used to meet additional demand for services arising from unpredictable factors or factors of a seasonal, periodic or intermittent nature. It can also be adopted for the temporary replacement of a permanent employee who is, for example, on leave or on vacation.
This type of hiring is usually well used in times of warm-up in trade, such as Easter, Mother’s Day, Black Friday and Christmas. According to Brazilian legislation, hiring must involve a temporary employment agency. These agencies are responsible for hiring and providing workers to companies that need to fill vacancies for a short period.
In Brazil, this type of contract was established by Federal Law 6019/1974 and does not constitute an employment relationship. Some changes to the rules were established by Federal Law 13,429/2017. More recently, Decree 10,854/2021 reiterated workers’ rights and regulated the operation of agencies.
According to the legislation in force, the contract can last a maximum of 180 days. In exceptional situations, it is possible to extend for another 90 days, provided that the company taking the service proves the maintenance of the conditions that generated the demand for temporary employment. After these deadlines, the company will only be able to count on the same worker after 90 days. If a new contract takes place before this deadline, the employment relationship is characterized.
In addition to receiving a salary equal to that of a permanent worker who performs equivalent functions, the contractor must have access to the same conditions of food and medical care. The temporary employee is also entitled to paid weekly rest, to receiving the Christmas bonus, to the Severance Pay Fund (FGTS), to Social Security benefits and services and to occupational accident insurance. As already decided by the Superior Labor Court (TST), he is also entitled to the advantages provided for in collective norms agreed between the company and the unions that represent the permanent staff.
At the end of the contract, the employee must receive proportional vacation pay. The amount is also due in the event of dismissal without just cause or at the request of the worker. On the other hand, the temporary employee is not entitled to compensation of 40% on the FGTS, prior notice and unemployment insurance. Temporary stability in employment is also not guaranteed for pregnant women.
In order to function as a temporary employment agency, registration with the Ministry of Economy is mandatory. Once it is in a regularized condition, it can sign a service contract with the company that needs the worker. From then on, the agency establishes contact with the employee and signs the contract with him. It should contain the salary, working hours, indication of the company receiving the service, the function to be performed and the place of work, among other information.
With the exception of activities that have specific legislation, the contractor can regularly perform up to eight hours a day. Overtime, a maximum of two per day, must be remunerated with an increase of at least 50% of the hourly rate. For work carried out between 10 pm and 5 am, a night shift equivalent to 20% of the salary must be paid.
It is important to note that it is up to the agency to remunerate the worker and guarantee their rights. It must obligatorily record the contract in the Work and Social Security Card or in a substitute electronic system. It is also responsible for collecting social security contributions. Agencies are prohibited from charging any type of fee to temporary workers. It is also not allowed to hire foreigners who have a temporary visa to stay in the country.
Temporary work is not to be confused with outsourced work or with work contracted for a fixed period, which has specific legislation. In outsourcing, a company hires another that assumes the execution of activities agreed between both. A fixed-term contract, on the other hand, can be concluded for services whose nature or temporality justifies a delimitation of the working period, for example, for the organization of a business event.
Cases of fraud have already been found in TST judgments, leading to the annulment of contracts and the recognition of an employment relationship. Using temporary workers to fill vacancies in a new branch of the company, for example, is illegal. This new service demand is not considered transitory or complementary, but permanent.