In February 2024, more than 640 academics and researchers from forty countries worldwide sounded the alarm against the Brazilian Supreme Court's attempt to destroy all labour rights in Brazil. Recent rulings by this court indicate that its judges have accepted the thesis of the primacy of the contract over the reality of the employment relationship. This thesis could turn employment contracts into voluntary business acts, meaning that they would only be optional for the employer. The consequences would be dire: the employer could force workers into signing a fictitious self-employment contract, thereby creating an asymmetrical employer-employee relationship that forfeits International Labour Organisation (ILO) principles and brings back discriminative practices by legalising de facto subordination and control, that are the very definition of employment relations. If this happens, Brazilian judges would be forbidden from ruling on any instance of reclassification of civil or commercial contracts as employment relationships, as they would not be able to verify how these contracts are actually fulfilled. Concretely, this means that in the case of a food delivery courier, or any worker, even if a platform or any firm determines which order he receives, the wage he receives, the delivery route he takes, the uniform he wears, and the rules he must follow when making a delivery, a judge would not be able  to reclassify that worker as an employee of the firm because the contract says he is in business for himself.  The reality of workplace power and domination would be subordinated to the language of the contract. However, the mere conversion of an employment contract into a civil or commercial contract is in contradiction with the principles applied in courts the world over and that are laid out in Recommendation 198 of the International Labour Organisation (ILO), according to which the employment relationship is established and verified on the basis of facts. 

The trial that began in February 2024 by the Supreme Court is ongoing without a definite time-line. Once it is taken, though, the final decision will be a binding precedent for all Brazilian judges. It is no accident that the classification of platform workers was chosen as the paradigm case: it substantiates Uberisation as the vector for the outright destruction of workers' rights as such. If the final decision upholds the thesis of the Supreme Court's majority, all labour contracts, not just those of platform workers, could be fictitiously transformed into other types of contracts, such as bogus self-employment, independent contractors or many others, thereby defrauding the employment relationship and preventing the enforcement of any labor rights. This would violate the fundamental rights enshrined in the Brazilian Constitution, such as paid holidays, limitation of working hours, rest breaks, protection against discrimination, freedom of association, political freedom at work, and so on. 

We, the undersigned, mindful of the social devastation that such a decision will cause for the Brazilian population, which would then serve as a laboratory for its spreading throughout the world, join with academics and researchers in warning the judges of the Federal Supreme Court of the consequences of this thesis. 

As the preamble to the ILO Constitution states, ‘the failure of any nation to adopt humane conditions of labour is an obstacle in the way of other nations which desire to improve the conditions in their own countries’. 

We say no to the end of labour law; we say yes to the fundamental rights of workers. We implore the Justices of the Brazilian Supreme Court to refrain from tearing to pieces the Brazilian Constitution and rather remain the guardians of all the international human rights treaties signed by Brazil.

Rodrigo Carelli, Faculty of Law, Universidade Federal de Rio de Janeiro (Brasil)

Veena Dubal, Faculty of Law, University of California, Irvine (USA)

Donna Kesselman, Faculty of Literature, Languages and Humanities, Université Paris-Est Créteil (France) 

Sawmiya Rajaram, Jindal Global Law School, O.P Jindal Global University (India)

Youssef Sadik, Faculty of Law, Economic and Social Sciences, Mohammed V University in Rabat (Morocco)

For all contact: defendbrazilianlabourlaw@gmail.com