Expats working in Brazil

EXPATS WORKING IN BRAZIL - 2018 LAW OVERVIEW

The remarkable growth of the Brazilian economy in the recent years attracted the attention of large numbers of non-Brazilians to work in Brazil.

According to statistics of the Ministry of Justice (2014) there was a 57% growth in the number of foreign workers in the years 2014 to 2017 accumulated, reaching a total of 1.51 million in comparison to December of 2013.

It should be noted at this juncture, the increase in the flow of immigrants from other countries of South America, as Bolivians, Peruvians and Paraguayans, mostly without a college degree and who saw an opportunity to improve their living conditions in Brazil.

But it is important to express that the same legislation applied to such immigrants is also valid for expats, multinational employees, executives, others.

When working in the country, the foreigner shall have the same labor rights of an employee native of Brazil, as 13th salary, vacation, Social Security rights, among others. Also worth mentioning the standard journey of eight hours per day or 40 per week, with one day off, preferably on Sundays.

There are numerous decisions by the Labor Court, in which foreigners claim the recognition of rights under the employment relationship, but it is not unanimous.

The Third Chamber of the Superior Labor Court ruled that the Brazilian Labor Court has jurisdiction over the action of an Argentine engineer who worked for years concomitantly in Brazil and Argentina. Dismissed after 23 years working as a contractor in a company on the area of telecommunications with subsidiaries in Brazil, the engineer asked for recognition of employment and the several rights arising from this type of labor contract. But he had this requests denied at the first and second instances.

Another case, judged by the Sixth Class of TST in September 2006, opened an important precedent. A Paraguayan illegally working in Brazil, won the right to be recognized as a formal employee after exercising the function of electrician for 17 years in a local small company. The rapporteur Minister Horacio de Senna Pires, granted the worker’s appeal based on constitutional principles and the Mercosul Protocol of Cooperation, which provides equal treatment among those born in countries that have signed the pact (Argentina, Brazil, Paraguay and Uruguay), in their respective territories. Article 3 of the Protocol provides that “citizens and permanent residents of one of the States Parties shall enjoy the same conditions of citizens and permanent residents of another State Party, as well to free access to the Courts in the jurisdiction of that State for the protection of their rights and interests”.

1 – Legal requirements to work in Brazil

As in any country there are legal requirements for non-Brazilians work in Brazil and it could not be different.

It was Law No. 6.815/80, regulated by Decree No. 86.715/81 that defined the legal status of these workers in the country and created the National Immigration Council (CNI) -Organ of the Ministry of Labor and Employment responsible, among other elements, for the formulation of immigration policy and coordination of the work activities in the country.

The CNI establishes and directs the granting of work permits for foreigners who intend to stay provisionally or permanently.The Ministry of Foreign Affairs issues a consular authorization to be registered in the passport – a “visa”, allowing the worker to enter, work and remain in the country.

The visa (temporary or permanent) is the first obligation to be observed by those who enter in the country on a cultural vacation, business, as an artist, athlete, student, scientist, radio correspondent, newspaper, television or agency foreign news, among others. By the other hand, the permanent visa is specifically granted for those who wish to permanently reside and work regularly in Brazil.

Since 2006 there was an increase in the number of work permits issued for foreign workers. This is due (according to Paulo Sergio Almeida, former general coordinator of Immigration at the Ministry of Labour and Employment) to the increment of investments in Brazil, mainly in the sectors of industry, oil, gas and energy.

“There is crescent demand for the coming of professionals specialized in supervision and implementation of the most sensitive performances in the deployment of equipment and technology transfer,” Almeida said in an article published on the website of the MTE.

However, this specialized professional are required to prove their qualification and / or experience, which should be done at the Ministry of Labor and Employment, through the presentation of diplomas, certificates or declarations provided by educational institutions.

A new criteria for the authorization of these professionals work with temporary visas were established by Resolution No. 64 of 09.13.2005 of the National Immigration Council. According to this resolution, to demonstrate the qualifications or experience the candidate will needs to demonstrate experience of a 2 (two) years alternately in the performance of mid-level profession, with minimum education of nine years or one year experience in the exercise of high level profession.

2 – Liability over underpaid work

São Paulo Labor Court has dismissed a civil suit filed by the Public Ministry of Labor (MPT) against exploitation of workers via underpaid salaries. A prime example was the action filed by MPT São Paulo in February 2012 against a large retail store for exploiting workers – mostly.

This was the first civil suit on “slave labor” involving foreigners in urban facilities in Brazil. The SP-MPT requested, the Labor Court of São Paulo to advance relief (immediate suspension of this practice), plus punitive damages to the collective of workers worth £ 5 million, to be reverted to the Fund of Workers Assistance (FAT). By the present time the civil action was not dismissed.

A BBC special program reported the situation of a group of 25 foreigners working in the factory of a giant commodities producer in the Federal District, who worked in the poultry slaughter by halal method that were living in poor conditions of accommodation in company. The MPT and the Ministry of Labor conducted inspections to investigate those allegations of mistreatment. But the case of this factory repeats in several other Brazilian States.

Another unit of this giant commodities producer, located in the municipality of Parana State was processed by the Ministry of Labor of Parana through civil action in the Labor Court which granted an injunction banning the work of 30 Muslims working as outsourced manpower to perform halal slaughter.

According to prosecutors, outsourcing – as made by the Group of Halal Slaughter – is irregular because the slaughter of animals is the core activity of the company.

Finally, companies interested in using non-Brazilian in the execution of its activities in Brazil should seek detailed information about the local legislation in order to properly calculate the costs, taxes and other rights incident over wage as per the Brazilian Labor Law.

When effectively qualified to attend to the cause in question, this is the professionals who will be best able to guide and administer legal issues in their locality.

You can hire a skilled Brazilian lawyer by searching the following Associations:

1. Brazil – Latin Lawyer

2. Best Lawyers in Brazil

3. HG.org

4. Chambers and Partners

You can also contact directly the following reliable lawyers in Brazil:

1. Cliford Chance

2. Pinheiro Neto

3. White & Case 

4. MF Ejchel

5. International Lawyer Brazil

In case of any doubt or assistance, please contact us.

Thank you,

Maurício Ejchel

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