Quarentena para contratação de ex-funcionários como intermitentes

Quarentena para contratação de ex-funcionários como intermitentes

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Medida provisória determina que um funcionário demitido só poderá ser recontratado pela empresa no modelo intermitente após um prazo de 18 meses

Uma das principais novidades na reforma trabalhista, a contratação de trabalhadores por regime de trabalho intermitente sofreu uma importante alteração após a Medida Provisória (MP) 808 ser publicada em edição extra do Diário Oficial da União, nesta terça-feira (14/11).

Sem restrições previstas no texto original aprovado pelo Congresso, a MP determina que um funcionário demitido só poderá ser recontratado pela empresa no modelo intermitente após um prazo de 18 meses.

A quarentena terá validade até dezembro de 2020, permitindo que, a partir de 2021, as empresas contratem, sob jornada intermitente, funcionários recém-demitidos sem nenhum tipo de restrição.

Para especialistas, a medida visa conter o ímpeto de empresários que enxergaram no modelo intermitente uma maneira rápida de reduzir custos e melhorar as margens.

“Faz sentido neste momento, para evitar uma rescisão em massa e a contratação em forma mais precária”, avalia a especialista em Direito do Trabalho Gisela Freire, sócia do escritório Souza Cescon. “A partir do momento em que a compreensão da lei se estabilizar e pessoas e empresas entenderem os benefícios que o novo formato traz, entendo que o prazo de 18 meses pode ser muito extenso”, disse.

A avaliação sobre o objetivo da quarentena é compartilhado por Peterson Vilela, advogado trabalhista do escritório L.O. Baptista.

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“Vejo como uma imposição justamente para evitar que seja feito o mau uso do contrato intermitente”, afirmou. Omissões. Também é preciso ter em mente, disse Vilela, que o dispositivo foi implementado por medida provisória, ou seja, ainda pode ser revogada no Congresso: “Uma medida provisória, deve, por definição, ter relevância e urgência. Nesse caso, me parece que a MP não tem esse cunho e veio mais para corrigir erros ou omissões.”

Neste momento, o especialista disse que não aconselharia clientes a adotar o contrato intermitente, mesmo que a MP vire lei após votação no Congresso.

“Existe o risco de ser configurada fraude contra o direito dos trabalhadores, INSS e o FGTS, caso as condições de trabalho permaneçam as mesmas, sendo apenas implementado um revezamento entre funcionários intermitentes.”

As empresas não devem “se jogar de cabeça” na contratação intermitente, aponta Eduardo Ferracini, sócio do escritório Rocha, Ferracini, Schaurich Advogados.

“O prazo de 18 meses foi colocado justamente para sinalizar ao empregador que a relação de trabalho não pode ser alterada da noite para o dia e que o direito do funcionário não pode ser tolhido”, disse.

Para Ferracini, o risco de uma onda de demissões em massa seguida por recontratação sob jornada intermitente é mais relevante em empresas menores, que podem ter um olhar mais imediatista sobre as possibilidades da reforma.

“As companhias bem assessoradas vão fazer análise do seu quadro de funcionários e estudar o que pode ou não fazer de adequação para ter algum ganho de eficiência.”

Fonte: Diário do Comércio
Data: 18 de novembro de 2017
Acesso: 21 de novembro de 2017

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