INTERVIEW – LEXLATIN
1 – WHAT IS THE EFFECTIVENESS OF NATIONAL LAW APPROVED IN 2018 (LAW 13640/2018) IN REGULATING TRANSPORT APPLICATIONS SUCH AS UBER?
A – Like most Laws passed in Brazil, it also leaves certain gaps and raises doubts about subjects not addressed by the lawmaker. Law 13640/2018 altered the wording of some topics of Law 12587/2012.
Apparently, the lawmaker’s goal, in 2018, was to adapt the legislation to a new setting, namely the platforms or passenger transport applications such as Uber and 99.
Interestingly, Law 13640/2018 was basically concerned with collecting, for the public treasury, possible taxes stemming from the transport of passengers by application or platform. It ought to be noted that the said law establishes, “Exclusively” to cities and the Federal District, the regulation and inspection of transport by digital applications or platforms, however, it requires the cities and the Federal District to abide by the guidelines, and approaches the required taxes.
But the only occasion on which such law addresses passengers and drivers, as to their safety and guarantees, is when it provides for Personal Accident insurance, and the requirement for drivers to contribute to INSS (Brazilian Social-Security Institute).
Therefore, it must be concluded that the lawmaker’s concern was not with the transportation and safety of passengers or drivers, but, first of all, with the taxation resulting from the activity and, only at a later time, imparted a “slight” care for users.
In addition, assigning the municipalities the power of inspection creates an imbalance and an even greater insecurity, after all, large cities may even have tools and funds to perform inspection, but smaller ones will certainly not have revenue or the means to exercise such supervision, which results in more uncertainty to the population using this type of transport.
Unfortunately, this law merely outlines meager and uncertain aspects of concern, in taxing, whereas it fails to organize, regulate, and ensure rights for users and drivers.
2 – HOW DOES THE NATIONAL LAW COMPARE WITH THOSE APPROVED BY THE CITIES?
Almost imperceptibly.
The National Law warranted the cities the power to inspect the subject, that is, it has granted each municipality the possibility of legislating and outlining the guidelines of each municipal unit, imposing only a few requirements, among them, to comply with tax payment.
In summary, the National Law did not draw a safe path for the activity to be regulated in a unified way or at least equivalent between the cities because, as the national law stands, each of the cities can outline its guidelines thus bringing about substantial legal uncertainty, not only to users but also to drivers and even to platforms and applications.
Perhaps this explains the fact that some smaller cities do not have an app-based transport service.
In a quick search on the internet[1], it is possible to note that cities considered medium-sized, such as Araguaína, in the state of Tocantins, with approximately 184,000 inhabitants, and Francisco Morato, in the state of São Paulo, with about 178,000 inhabitants, do not have transport through the Uber platform.
Possibly one of the factors that influence the operator’s decision not to conduct business in these regions is the legal uncertainty caused by municipal legislation or the absence thereof.
3 – DOES THE OFFICE CONSIDER THAT THERE IS ROOM TO IMPROVE THESE REGULATIONS?
Yes. In fact, not only this issue but others related to delivery platforms and applications, for instance.
As the emergence of this modality of operation occurred very quickly and its acceptance was massive, the lawmaker was unable to keep up with the evolution and expansion of this type of services, and even before regulating the transport of passengers, there were other emerging modalities, such as, without limitation, animal transport, food delivery, beverage delivery, delivery of small and medium-sized goods, seasonal property lease (Airbnb for example), sales of air and land tickets, and many more will still arise.
The development of ideas and platforms is so fast that the country’s legislative system, archaic, rusty, and above all, conservative and retrograde, is unable to keep up and think ahead.
The National Lawmaker is always one or two steps behind social evolution and this, in addition to creating uncertainty for the population, makes positive developments as fast as the negative ones, such as frauds.
That is, while the lawmaker postpones the study and creation of laws, the scammer takes advantage of the absence of inspection and legislation on the subject.
4 – IS IT NECESSARY TO REGULATE THE LABOR ASPECT?
Yes, and at the same speed as the civil regulations on the subject.
Our Regional Federal Appellate Courts are already faced with employment claims where app drivers seek an employment relationship with transport platforms. These claims are no longer so new to the Labor Court.
And to the surprise of this interviewee, some Regional Appellate Courts, such as 1st Region TRT (state of Rio de Janeiro) have already understood the existence of an employment relationship between the platform and the driver.
The theme still causes and certainly will cause strong disagreements because, for instance, the 4th Panel of TST (Regional Federal Appellate Court), the highest body of the Labor Court, at the beginning of March 2023, expressed a position that there is no relationship, which demonstrate interpretations are already emerging in both directions, creating a sort of game of chance that can increase the number of actions before the Labor Court.
This is also due to the lack of specific legislation on the subject, as occurred, for instance, in the case of Complementary Law 105/2015 that regulated the work of household assistants, among others.
As long as we do not have labor legislation aimed at new forms of service provision, which intensified with the pandemic, we will be faced with an uncertainty capable of causing, for example, that two brothers who work separately for the same passenger transport platform are faced with the recognition of the relationship between one and the platform, and the non-recognition of the relationship between the other, depending on the Regional Appellate Court that tries the appeals.
This is the very definition of legal uncertainty.
[1]https://canaltech.com.br/apps/cidades-do-brasil-que-ainda-nao-tem-uber/
Available at: https://br.lexlatin.com/reportagens/brasil-abriu-precedente-na-regulamentacao-de-aplicativos-de-transporte-o-que-falta
Autor: Douglas Siqueira Artigas • email: douglas.artigas@ernestoborges.com.br • Tel.: +55 67 3389 0123+55 67 98411 1262
