The delivery app workers’ strike and Bill 3,748

In July 2020, strikes organized by delivery app workers, united by the hashtag #brequedosapps, took over the social networks and the news outlets, bringing forward their demands for better working conditions and for a fairer relationship between the platforms and the workers.

This situation even caught the attention of the political class, giving rise to the proposal of a bill that seeks to regulate the relationship between delivery companies and app workers. In today’s post, we present more information about the situation of these workers, about the app strike and about the legislative initiatives that deal with the famous delivery apps and on demand services.

Delivery workers, strikes and bills

In their motorcycles or bicycles, delivery app workers have become common figures in the panorama of Brazilian cities – with their huge backpacks, carrying goods from one side of the city to the other. With the pandemic, while many have closed themselves at home, these workers remain on the streets, ensuring that the people trapped in their homes receive their snacks and products.

This precarious condition, with the absence of adequate protective equipment, with high exposure to the risk of contamination of the new coronavirus and with low remuneration, took workers to the streets in a strike against delivery apps on the 1st of July, also taking over networks to influence consumers not to use these platforms. Another strike followed, this time on Saturday, July 25, although with less participation from the category.

Organizing themselves digitally, the workers exposed the precarious situation to which the category is subjected, in addition to demanding changes in the remuneration of the trips. Other demands were the end of unjustified blockages and the end of the scoring system, as well as constant assistance during the pandemic, with the provision of masks and gel alcohol, for example.

Although with different agendas, considering the diversity of the category and the search for a portion of the strikers for the recognition of the signed contract according to the Consolidation of Labor Legislation (CLT), the workers came together in favor of better working conditions and remuneration.

In order to solve this problem, a bill was proposed to regulate work on demand, led by deputy Tábata Amaral (PDT-SP) – PL 3.748 / 2020. This project is added to the initiatives of other parliamentarians, such as that of Ivan Valente (PSOL-SP), whose bill number 1,665 / 2020 seeks to guarantee delivery personnel basic hygiene materials for prevention, and that of Rubens Otoni (PT-GO), which with Bill 3.538 / 2020 aims to ensure paid leave for workers who need to leave work for medical reasons.

Thus, in the face of the lack of responses by the delivery platforms in the face of workers’ demands, now the dispute is moving into the legislative arena at the hands of parliamentarians, without the due presence of interested parties in the debate, who are the deliverers and the companies.

The situation of delivery applications in Brazil

Following the trend of transportation applications, several platforms have emerged that set out to revolutionize something that many Brazilians already knew: delivery. Companies like iFood and Uber joined the wave and buried consumers with discount coupons while enlisting a delivery force workforce, motorized or not.

Just as in the case of ride sharing app drivers, it did not take long for problems to show up in the delivery app model, such as unusual blockages, the constant decrease in the remuneration of deliveries and an intricate scoring system capable of surprising even the oldest delivery personnel. Such problems intensified in the context of the pandemic, largely due to the fact that these workers are oblivious to the Brazilian social security system and many also did not have access to the emergency aid provided by the government, which made them continue on the streets.

Some battles were fought in the Judiciary, such as the injunction that obliged iFood to pay couriers removed for coronavirus – later overturned in the second instance, in a lawsuit filed by the Ministério Público do Trabalho of São Paulo (Case number 1000396-28.2020.5.02.0082). So, against European countries and even the United States, which has already recognized the link between companies and workers in the judicial system, Brazil still does not offer a satisfactory answer to the problem, and that is where new legislative projects come in.

Some considerations about Bill 3.748/2020

Bill 3.748, by Mrs Tabata Amaral, proposes to face an arduous task: that of instituting and disposing of the on-demand work regime, which today exists in Brazil in a limbo between informality and the celetist regime, in constant dispute as to which is the appropriate legal regulation to govern these relations. Despite the laudable initiative, however, the project needs to be analyzed from a more critical perspective, so that the debate is not lost on the superficial reading of the proposal.

Some legislative proposals are already seen in other countries, the most striking being the Assembly Bill number 5 (the so-called AB5California), which determined an employment relationship between those workers who were treated as independent contractors and the companies that recruit them.

The great merit of PL 3.748 is in bringing to light the need for regulation of work on demand, which is that in which work is provided from service on demand platforms, taking the topic to the arena of legislative debates. However, the project is in danger of being overshadowed by some problems in its wording, as well as by the possibility of mischaracterization of the initial proposal, similarly to what happened with the project to combat fake news.

On the one hand, the project seeks to prevent abuse of workers’ rights in the platforms’ value chains, regulating the penalties applied, in part meeting a workers’ demand. In addition, the PL points out that platforms must adopt measures to avoid risks inherent in the provision of services, as well as obliging companies to provide individual or collective protection equipment, or indemnify workers who acquire them.

Furthermore, the PL proposes rules regarding maternity leave and paid leave in case of temporary incapacity for injured or sick workers. In short, it incorporates some proposals already present in bills of other parliamentarians, while aiming to complete a herculean task: regulate work by application in Brazil, even though it leaves open the possibility of recognizing the employment bond between companies and employees. deliverers, provided that the elements that characterize the employment relationship are present, in the form of the CLT.

On the other hand, the project presents a problem in dealing only with the time that these workers are in effective service, disregarding the waiting time to get an order. This aspect is seen as problematic in the category because, unlike drivers who can run one race after another, the working time they are logged into the application will not be paid.

In addition, the project disregards the existence of the category of intermittent employment contract, a legislative innovation brought by Law no. 13,467 / 17, the Labor Reform, in article 452-A of the CLT, which guarantees rights such as vacations, legal additions and weekly paid rest, in addition to being a model of contract designed for intermittent work, which is the one in which the period work is interspersed with periods of inactivity, in which the worker does not provide services to the company.

In this sense, the PL proposes an alternative work regime, without the guarantees and rights that are inherent to the intermittent work contract regime. Thus, it can bring more harm than benefits to workers.

In short, the deputy presents a project that regulates these relationships from top to bottom, disregarding the existing jurisprudential and doctrinal construction on the subject. It is worth noting that the working class itself did not participate in the elaboration of such a project. 

Moving forward, without forgetting what was left behind

On demand working apps are today a phenomenon in Brazil that deserves due attention. There are already several companies that emulate the delivery by platform system, but denying that there is any link between themselves and the workers.  

The effects of this phenomenon will be felt more drastically with the advancement of unemployment in the country due to the pandemic and with the entry each time greater number of workers in that work system, causing more workers to be subjected to this work regime that today puts them in danger.

However, one cannot lose sight of the need to guarantee the minimum of rights and security to workers who today are an integral part of the life of large Brazilian cities.

On the other hand, it is necessary to proceed with extreme care when dealing with bills that seek to solve the problem in a simplistic way and put aside existing instruments in our legislation that are better suited to meet the workers’ demands. It is necessary to move forward – of course – but without forgetting what is behind us, so that it is possible to evolve legal protections for workers without going back to mistakes that have already been overcome in the past.

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The views and opinions expressed in this article are those of the authors.
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