Regional Labour Tribunal of the Third Region, Rogério Ferreira Gonçalves (1) Infocoop Servíços – Cooperativa de Profissionais de Prestação de Servíços Ltda (2) Caixa Económica Federal CEF (Responsável Subsidiária), 30 September 2003, 00652-2003-017-03-00-0RO
Constitution of Brazil
(1) Norms that define fundamental rights and guarantees are immediately applicable.
(2) The rights and guarantees expressed in this Constitution do not exclude other rights stemming from the system and principles adopted by this text or stemming from international treaties to which the Federal Republic of Brazil is a party.
(3) International treaties and conventions on individual rights that are adopted by both houses of the Congress, in two rounds, by three fifths of the votes of the members of each house will be the equivalent of constitutional amendments.
Reference to international law to strengthen a decision based on domestic law
Instrument not subject to ratification1
A worker carrying out his activity within the framework of a cooperative providing services for a public administration/ Claims of the existence of an employment relationship/ Existence of a link of subordination/ Reference to international law to strengthen a decision based on domestic law
A computer operator had joined a cooperative which provided services for a public administration. Within that framework, he worked for the administration while being paid by the cooperative as a member of it.
Collaboration with the cooperative ended after 20 months. The worker referred the matter to the courts in order to gain recognition that he was in fact linked to the cooperative by an employment relationship, a legal classification, leading to the granting of a certain number of advantages and compensations.
The court of first instance decided in favour of the operator and reclassified the contractual relationship linking him to the cooperative. The cooperative appealed that decision, arguing on the one hand that the operator was a full-fledged member of the cooperative, thus receiving his part of the benefits of that organization and stressing on the other hand that the contractual ties between the cooperative and the public administration were purely civil in nature, and that there was no evidence that there was a dependent employment relationship with the operator.
Before examining the facts of the dispute, the Regional Labour Court considered the article of the Brazilian labour legislation indicating that the members of a cooperative are not tied to it by a contract of employment. The jurisdiction of second instance stressed that that provision had the sole result of creating a simple presumption of an absence of a dependent employment relationship and that it in no way prevented reclassification of the contractual tie linking the member to the cooperative, especially in the event of fraud aimed at avoiding the application of labour legislation.
In order to strengthen its interpretation of the labour legislation mentioned above, the Regional Labour Court referred to ILO Recommendation No. 193 on the Promotion of Cooperatives. After having quoted paragraph 8(b) of that instrument,2 the Court said the following: “Thus, while promoting the creation of cooperatives, the ILO has shown its concern that that legal instrument not be used to violate workers’ rights. In each case, it is necessary to check the way in which the provision of services occurred in order to determine its correct legal qualification.”
The Court of Appeal applied that principle to the case in hand and found that remuneration of the computer operator was absolutely no different from that usually paid to an employee and that nothing in the organization of the work done by the operator made it possible to consider him an independent worker.
On that basis, the judge giving the Regional Labour Court’s decision declared: “Thus, basing my argument on the legal principles already mentioned as well as on the recommendation coming from the ILO and adopting the same position as the decision of first instance, I reach the conclusion of the existence of a relationship of employment, the conditions of Article 3 of the consolidated labour laws being fulfilled.”
2 Paragraph 8(b) of Recommendation No. 193: “Ensure that cooperatives are not set up for, or used for, non-compliance with labour law or used to establish disguised employment relationships, and combat pseudo cooperatives violating workers’ rights, by ensuring that labour legislation is applied in all enterprises.”