Fixadas regras voltadas à execução da Reforma Trabalhista sobre o trabalho autônomo e contrato de trabalho intermitente

Fixadas regras voltadas à execução da Reforma Trabalhista sobre o trabalho autônomo e contrato de trabalho intermitente

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O Ministério do Trabalho (MTb) estabeleceu regras voltadas à execução da Lei nº 13.467/2017, conhecida como “Reforma Trabalhista”, no âmbito das competências normativas do MTb, conforme os destaques adiante.

A contratação do autônomo, cumpridas por este todas as formalidades legais, com ou sem exclusividade, de forma contínua ou não, afasta a qualidade de empregado prevista no art. 3º da Consolidação das Leis do Trabalho (CLT), aprovada pelo Decreto-lei nº 5.452/1943. Não caracteriza a qualidade de empregado prevista no art. 3º da CLT o fato de o autônomo prestar serviços a apenas um tomador de serviços. O autônomo poderá prestar serviços de qualquer natureza a outros tomadores de serviços que exerçam ou não a mesma atividade econômica, sob qualquer modalidade de contrato de trabalho, inclusive como autônomo. Fica garantida ao autônomo a possibilidade de recusa de realizar atividade demandada pelo contratante, garantida a aplicação de cláusula de penalidade, caso prevista em contrato.

Motoristas, representantes comerciais, corretores de imóveis, parceiros e trabalhadores de outras categorias profissionais reguladas por leis específicas relacionadas a atividades compatíveis com o contrato autônomo, desde que cumpridos os requisitos anteriormente descritos, não possuirão a qualidade de empregado prevista o art. 3º da CLT.

Presente a subordinação jurídica, será reconhecido o vínculo empregatício.

O contrato de trabalho intermitente será celebrado por escrito e registrado na Carteira de Trabalho e Previdência Social (CTPS), ainda que previsto em acordo coletivo de trabalho ou convenção coletiva, e conterá:
a) identificação, assinatura e domicílio ou sede das partes;
b) valor da hora ou do dia de trabalho, que não poderá ser inferior ao valor horário ou diário do salário-mínimo, nem inferior àquele devido aos demais empregados do estabelecimento que exerçam a mesma função, assegurada a remuneração do trabalho noturno superior à do diurno; e
c) o local e o prazo para o pagamento da remuneração.

O empregado, mediante prévio acordo com o empregador, poderá usufruir suas férias em até 3 períodos, nos termos dos §§ 1º e 3º do art. 134 da CLT. Na hipótese de o período de convocação exceder um mês, o pagamento das parcelas a que se refere o § 6º do art. 452-A da CLT não poderá ser estipulado por período superior a um mês, devendo ser pagas até o 5º dia útil do mês seguinte ao trabalhado, de acordo com o previsto no § 1º do art. 459 da CLT.

Dadas as características especiais do contrato de trabalho intermitente, não constitui descumprimento da letra “b” ou discriminação salarial a pagar ao trabalhador intermitente remuneração horária ou diária superior à paga aos demais trabalhadores da empresa contratados a prazo indeterminado. Constatada a prestação dos serviços pelo empregado, estarão satisfeitos os prazos previstos nos §§ 1º e 2º do art. 452-A da CLT.

É facultado às partes convencionar por meio do contrato de trabalho intermitente:
a) locais de prestação de serviços;
b) turnos para os quais o empregado será convocado para prestar serviços; e
c) formas e instrumentos de convocação e de resposta para a prestação de serviços.

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Para fins do disposto no § 3º do art. 443 da CLT, considera-se período de inatividade o intervalo temporal distinto daquele para o qual o empregado intermitente haja sido convocado e tenha prestado serviços nos termos do § 1º do art. 452-A da CLT. Durante o período de inatividade, o empregado poderá prestar serviços de qualquer natureza a outros tomadores de serviço, que exerçam ou não a mesma atividade econômica, utilizando contrato de trabalho intermitente ou outra modalidade de contrato de trabalho. No contrato de trabalho intermitente, o período de inatividade não será considerado tempo à disposição do empregador e não será remunerado, hipótese em que restará descaracterizado o contrato de trabalho intermitente caso haja remuneração por tempo à disposição no período de inatividade.

As verbas rescisórias e o aviso-prévio serão calculados com base na média dos valores recebidos pelo empregado no curso do contrato de trabalho intermitente. No cálculo da citada média, serão considerados apenas os meses durante os quais o empregado tenha recebido parcelas remuneratórias no intervalo dos últimos 12 meses ou o período de vigência do contrato de trabalho intermitente, se este for inferior.

No contrato de trabalho intermitente, o empregador efetuará o recolhimento das contribuições previdenciárias próprias e do empregado e o depósito do Fundo de Garantia do Tempo de Serviço (FGTS) com base nos valores pagos no período mensal e fornecerá ao empregado comprovante do cumprimento dessas obrigações.

As empresas anotarão na CTPS de seus empregados o salário fixo e a média dos valores das gorjetas referente aos últimos 12 meses.

A comissão de representantes dos empregados a que se refere o Título IV-A da CLT não substituirá a função do sindicato de defender os direitos e os interesses coletivos ou individuais da categoria, inclusive em questões judiciais ou administrativas, hipótese em que será obrigatória a participação dos sindicatos em negociações coletivas de trabalho, nos termos dos incisos III e VI do caput do art. 8º da Constituição Federal (CF/1988).

As regras anteriormente descritas vigoram desde 24.05.2018.

(Portaria MTb nº 349/2018 – DOU 1 de 24.05.2018)

Fonte: Sage IOB
Data: 24 de maio de 2018
Acesso: 30 de maio de 2018

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