At the end of yesterday (01/04/2020), in an extra edition of the Federal Official Gazette, the Government published Provisional Measure No. 936/2020, which institutes the Emergency Program for the Maintenance of Employment and Income and brings complementary labor measures to cope with the state of public calamity and the public health emergency of international importance resulting from the coronavirus.
The measures of the Emergency Program are:
It is important to note that these measures do not apply to the bodies of direct and indirect public administration, public companies and mixed capital companies, including their subsidiaries and international organizations.
EMERGENCY BENEFIT FOR MAINTENANCE OF EMPLOYMENT AND INCOME
The benefit, created by PM 936/2020, will be funded with Union resources in the following cases:
a) Proportional reduction of working hours and wages; and
b) Temporary suspension of the employment contract.
The benefit will be provided on a monthly basis and due from the date of commencement of the reduction of the working hours and wages or the temporary suspension of the employment contract, subject to the following provisions:
If the employer does not provide the necessary information within the period established above:
ATTENTION: It is important to note that an act of the Ministry of Economy will discipline (i) the form of transmission of information and communications by the employer and (ii) the form of concession and payment of the benefit. In other words, we still depend on the publication of said act so that companies can effectively apply the provisions contained in PM 936/2020.
The benefit amount will be based on the monthly unemployment insurance amount to which the employee would be entitled, subject to the following provisions:
a) Equivalent to 100% of the unemployment insurance amount to which the employee would be entitled, in the hypothesis provided for in the caput of Article 8 (maximum term of 60 days, which can be divided into up to two periods of 30 days); or
b) Equivalent to 70% of the unemployment insurance to which the employee would be entitled, in the hypothesis provided for in § 5 of Article 8 (companies with gross revenue greater than BRL 4,800,000.00 in the calendar year of 2019 should complement the benefit in the amount of 30% of the employee’s salary).
The benefit will be paid to the employee regardless of:
On the other hand, the benefit will not be due to the employee who is:
PROPORTIONAL REDUCTION IN WORKING HOURS AND WAGES
During the state of public calamity, the employer may agree to a proportional reduction in the working hours and wages of its employees, for up to 90 days, subject to the following requirements:
The working shift and the salary previously paid will be reestablished within 2 calendar days, counting of:
TEMPORARY SUSPENSION OF THE WORK CONTRACT
During the state of public calamity, the employer may agree to temporarily suspend the employment contract of its employees, for a maximum period of 60 days, which may be divided into up to two periods of 30 days.
The temporary suspension of the employment contract will be agreed upon by individual written agreement between employer and employee, which will be forwarded to the employee at least 2 calendar days in advance.
During the period of temporary contract suspension, the employee:
The employment contract will be reestablished within 2 calendar days, counting:
It is important to point out that if, during the period of temporary suspension of the employment contract, the employee maintains working activities, even if partially, through teleworking, remote work or distance work, the temporary suspension of the employment contract will not be characterized, and the employer will be subject to:
Finally, we reinforce that, as already mentioned above, companies with gross revenue greater than BRL 4,800,000.00 in the calendar year of 2019 should complement the benefit in the amount of 30% of the employee’s salary.
MONTHLY COMPENSATORY AID
For cases in which the employer must pay the monthly compensatory aid, cumulatively with the payment of the benefit, it is important to note that this aid:
JOB SECURITY
To the employee who receives the benefit, as a result of the reduction in working hours and wages or the temporary suspension of the employment contract, is guaranteed a provisional job security is recognized, in the following terms:
The termination without cause implemented during the job security period will subject the employer to payment, in addition to the severance allowances provided for in the current legislation, an indemnity in the amount of:
It is important to highlight that the payment of said indemnity does not apply to the hypotheses of (i) resignation and (ii) termination for cause of the employee.
POSSIBILITY OF COLLECTIVE NEGOTIATION
Measures to reduce working hours and wages or temporarily suspend the employment contracts referred to in PM 936/2020 may be implemented through collective negotiation, if it is in the company’s interest, aiming at greater safeguarding and mitigation of risks, observing the requirements foreseen for each hypothesis.
At this point, collective bargaining may establish percentages of reduced working hours and wages different from those provided for in the PM (25%, 50% or 70%).
In this case, the benefit will be due under the following terms:
The measures referred to in Article 3, of PM 936/2020 (payment of the benefit, proportional reduction of working hours and wages and temporary suspension of the employment contract), will be implemented through an individual agreement or collective bargaining agreement to employees:
For employees not covered by the above hypotheses, the measures provided for in Article 3 can only be established by collective agreement, except for the reduction of working hours and wages of 25%, which can be agreed individually.
The collective bargaining agreements previously entered into may be renegotiated to adapt their terms, within 10 calendar days, counted from the publication date of PM 936/2020 (01/04/2020).
UNION COMMUNICATION
Individual agreements to reduce working hours and wages or temporarily suspend the employment contract, agreed under the terms of PM 936/2020, must be communicated by employers to the respective labor union, within up to 10 calendar days, counted from the date of its celebration.
PROVISIONAL MEASURE SCOPE
The provisions of PM 936/2020 also apply to apprenticeship and part-time work contracts.
FINAL PROVISIONS
During the state of public calamity:
EMPLOYEE WITH INTERMITTENT EMPLOYMENT CONTRACT
The employee with an intermittent employment contract formalized until the publication date of PM 936/2020 (April 1, 2020), under the terms of the provisions of § 3 of Article 443, from Labor Code, will be entitled to the monthly emergency benefit in the amount of BRL 600.00 (six hundred Reais), for a period of 3 months.
The benefit, in this circumstance, will be due from April 1, 2020 and will be paid within 30 days.
The existence of more than one employment contract under the terms of § 3 of Article 443, of Labor Code, will not generate the right to grant more than one monthly emergency benefit.