Nº 63 - May 2021 - NEW EMERGENCY EMPLOYMENT AND INCOME MAINTENANCE PROGRAM - Provisional Measures 1,045 and 1,046

Two new Provisional Measures, published in the Official Gazette on 04/28/2021, reissued the measures originally provided for in Provisional Measures 936 and 937 of March 2020, thus introducing the new asset, enabling the reduction of hours and wages or the suspension of contracts, and also a relaxation of labor rules, from 4/28/2021 up to a maximum term of 120 days, which may be extended by the same term, depending on the renewal of terms or conversion into law of these Provisional Measures .

MP 1.045 - REDUCTION OF JOURNEY OR SUSPENSION OF THE CONTRACT

Pursuant to MP 1.045 / 2021, employers may choose to reduce their work hours and wages or suspend their employment contract, always by formal individual or collective agreement, through the trade union, and must observe the following rules:

1. Reduction of hours and wages in the percentages of 25%, 50% or 70%, preserving the hourly wage; the complementary salary will be paid by the government based on the same reduction percentages, calculated on the amounts paid as unemployment insurance, currently, between R$ 1,100.00 and R$ 1,911.84;
2. Individual agreements can be entered into provided that: a) the employee receives up to R$ 3,000.00 (three thousand reais) per month; b) have a higher education diploma and receive a salary higher than twice the ceiling of the social security benefit; c) if the reduction is up to 25%;
3. Collective agreements must be entered into in all other cases, and may even provide for different percentages;
4. The agreements must be communicated to the employees, with 2 calendar days in advance, for start and end, as well as they must be communicated to the Ministry of Economy, within 10 days of its implementation, in accordance with Article 5 of MP 1.045;
5. The suspension of the employment contract can be agreed individually, observing the same deadlines above;
6. In the case of suspension, companies that in the calendar year 2019 have earned gross revenue greater than R$ 4,800,000.00 (four million and eight hundred thousand reais) must complement the asset (emergency benefit) in the amount of 30% of the monthly salary of the employee;
7. In other cases, the government will bear 100% of the value of Bem, limited to the ceiling of R$ 1,911.84;
8. Employees subject to these agreements will have job stability for the same period of suspension or reduction, and if they are already enjoying this stability now and the employer decides to implement a new reduction or suspension, the previous stability is suspended, the remaining term of which will be computed at the end of the new period;
9. Stability does not prevent termination on the employee's initiative, by mutual agreement, or for just cause; in other cases, the rules of article 10 of MP 1.045 must be observed;
10. The benefits provided for in the Collective Agreement must be fully maintained in the event of reduction or suspension, with some negotiation margin, as a transportation voucher that will not be necessary in the face of non-displacement; suspension of meal vouchers can be negotiated with the participation of the union;
11. The employer can complement the asset by stipulating compensatory monthly aid, of an indemnity nature, that is, it will not integrate the salary for any reflex or tax incidence.

MP 1.046 - TEMPORARY CHANGES IN THE CLT

In Article 3 of MP 1.046, the hypotheses for easing the rules applicable to employment contracts are listed:

I - teleworking;
II - the anticipation of individual vacations;
III - the granting of collective vacations;
IV - the use and anticipation of holidays;
V - the hour bank;
VI - the suspension of administrative requirements for safety and health at work;
VII - the deferral of payment of the Severance Pay Fund - FGTS.

The main aspects of these changes are:

1. The Employer may decide to implement telework (home office), communicating the employee at least 2 calendar days in advance, for the beginning and end of this regime, which may include interns and apprentices. You must formalize a contractual amendment within 30 days, counted from the beginning of the telework, defining the responsibility for the acquisition, maintenance or for the supply of work tools and the necessary infrastructure to work in telework or equivalent, including reimbursement of expenses borne by the employee;
2. Anticipation of individual vacations, even if the purchase period had not been completed; the additional third of vacation may be paid until the date of payment of the 13th salary;
3. Concession of collective vacations, without prior notification to the local Ministry of Economy body and communication to unions representing the professional category, with a period of 2 calendar days to start the vacation;
4. Use and anticipation of holidays, including for hour bank compensation;
5. Adoption of the hour bank, with the possibility of offsetting a negative balance within 18 months after the end of these measures;
6. Suspension of payment of FGTS, referring to the competences of April, May, June and July 2021, with maturity in May, June, July and August 2021, which may be paid from September 2021 in up to 4 installments;
7. Suspension of administrative requirements related to occupational safety and medicine (periodic exams, training), except for a dismissal exam for teleworkers.

Prepared by ANA CLAUDIA MORO, Legal Consultant at ABES and a lawyer at MASANTOS, CÔRTE REAL and ASSOCIADOS - ADVOGADOS, available for clarification of doubts by e-mail: anaclaudia.moro@abes.org.br.