The intermittent employment contract is a non-continuous provision of services, with subordination, which occurs with alternating periods of service provision and inactivity.
In the first year of the covid-19 pandemic, more than 50% of the vacancies created were intermittent.
That's right, according to Caged, of the 142 thousand new jobs with a formal contract, 73.1 thousand positions represented intermittent work.
And more: this modality is the only one that managed to grow 70% in just one year. But what makes the contract so attractive?
Intermittent work was implemented in Brazil by Law 13,467 of July 13, 2017 and since then it has been increasingly used in all market segments.
However, what exactly is a summons? What characterizes an intermittent activity? This article has what you need to understand all these questions in depth. So happy reading!
What is intermittent work?
The exact definition of intermittent work according to law 13,467 is:
"Intermittent Employment Contract is a non-continuous provision of services, with subordination, which occurs with alternating periods of service provision and inactivity, determined in hours, days or months, regardless of the type of activity of the employee and employer (except for aeronauts, governed by their own legislation).”
In other words, there must be gaps between call periods of days, weeks, or months.
Tadeu, an employer very interested in Intermittent Work, decided to include this modality in his network of stationery stores, for example.
Thus, by hiring intermittent workers in his business, he manages to balance payroll expenses according to fluctuations in his income.
Tadeu's business has a strong increase in demand in the first and second semesters back to school and a considerable drop in the months of June, July, November and December.
According to the Minister of the Superior Labor Court, Ives Gandra Martins Filho, “the 2017 Reform took a substantial step towards filling gaps, disciplining (…) intermittent work”.
That is, the modality was created to regularize an old problem of work throughout the country, the “bico”.
It is not news that informal activity infringes employee labor rights. Given this scenario, the situation was corrected in the intermittent modality.
It is important to say that the rules of individual and collective agreements are equally valid for intermittent workers under the terms of article 7 of the CF and article 611 of the CLT.
What is the difference between the intermittent and indefinite contract?
Although both guarantee the employee's labor rights, the main difference between intermittent work and an indefinite contract involves the issue of continuity.
While in the first the demand is changeable and there must be a call with a demarcated beginning and end, in the second there is no end date.
Thus, the contract for an indefinite period is marked by continuity.
Thus, the employee provides services with a defined frequency, as long as the workday does not exceed 44 hours per week.
Following the previous example, if the employer Tadeu hires an employee with an indefinite contract, he would work and be paid normally, whether there is demand or not.
Another important differentiation involves the payment, which occurs at the end of the month for the indefinite contract and at the end of the service provision period for the intermittent ones.
So, if Tadeu opts for intermittent work, he will only need to pay the amounts owed to the employee when he makes such a call.
Below you understand this particularity in practice.
How does intermittent work work in practice?
As it is a new modality, it is common that many employers still do not know its details.
Main characteristics of intermittent work
First of all, see below what are the main characteristics of the intermittent contract:
Non-continuity of activity;
Registration in the work portfolio;
Carrying out the activity for more than one employer;
Calls at least 72 hours in advance;
Non-mandatory acceptance of calls;
Confirmation of the summons in a maximum of 24 hours;
Immediate payment at the end of each service period;
Holidays with an additional ⅓;
Payment of DSR and 13th salary;
Application of fine for withdrawal after confirmation of the activity for the withdrawing party.
Intermittent work contract
The intermittent employment contract cannot be concluded with a conversation. To formalize the relationship, the correct thing is to conclude the contract in writing.
As the Labor Reform and Ordinance No. 349 clarify, the following information is required:
The addresses of the worker and the company;
Amount/hour or day of remuneration;
Place and deadline for payment;
Signature of both.
Another important consideration about the modality is that the hourly rate of work cannot be less than the hourly rate of the minimum wage or the salary of the other employees of the establishment.
As of 2019, the year of creation of the Digital Employment Card, it was possible to register in a portfolio through the Digital Tax Bookkeeping System for Social Security and Labor Tax Obligations (eSocial).
Therefore, when informing any situation of the contractor in eSocial, all information will also appear in the digital CTPS - beginning and end of the contract included.
Intermittent employee workday
At first glance, the intermittent workday is the same as other modalities. That is, it consists of entry, exit and meal break on the premises of the company.
Registering the point is another legal requirement, this time for companies with more than 20 employees. The employer must also pay overtime if it occurs.
Likewise, even without fixed working hours, the workday must not exceed the legal provisions of the CLT (8 hours a day, 44 hours a week and 2 overtime hours a day).
Intermittent employee rights
Intermittent workers have access to most conventional labor rights. He receives the FGTS, deposited in the Caixa account, and can enjoy rights such as maternity leave, work accident insurance and the aforementioned overtime
In addition to these, the main rights of intermittent workers are:
Wage;
Collective holidays and with an increase of 1/3;
Weekly paid rest;
13th proportional salary;
Legal additions.
The social security contribution, in turn, is a duty of the employee.
Thus, he must contribute on the total amount of the month according to his calls, in order to pay his share of Social Security if he wants to retire with the minimum wage.
Intermittent employee inactivity
Between one service provided and another, the worker must be absent from the company during a break.
The latter, in turn, remains exempt from paying any type of remuneration related to this inactive period.
However, in the meantime, the employee is available to be summoned by other employers.
It is essential to clarify the dimensions of these break periods, which in the case of intermittent work are not exact and can consist of months, days or hours, whatever the type of action taken by the company or employee.
Thus, there is no legal provision that answers the question exactly.
Therefore, it is up to the company to be flexible and consistent when managing its employee's break periods, so as not to impose regular shifts that define non-intermittent activity.
Call in the intermittent contract
The call for the provision of services must be made at least three days in advance by the employer, and using any effective means of communication.
The employee, in turn, has up to one day to respond to the summons.
If there is a refusal to provide services, the company cannot classify the action as an act of insubordination, as it is the employee's right to decide on the summons according to their particular criteria.
However, the situation changes when, after confirmation of the summons, one of the parties decides not to proceed with the provision of services.
The text of the Reform establishes the charging of a fine of half the previously agreed amount if there is no proof of just reason for withdrawal.
The reimbursement period is up to 30 days for the injured party.
Salary payment in the intermittent contract
The employer must make payment soon after the period of services rendered. It must contain the following amounts:
Remuneration amount;
Holidays with an additional 1/3;
Proportion of the DSR and the 13th salary;
Legal premiums (overtime, night premiums, etc.)
The intermittent earns the value proportional to the journeys made relative to the call period.
That is, the calculation of your earnings is based on the hours worked, according to the summons attended.
Along with payment, a receipt must compile all amounts and possible surcharges or discounts applied.
But be careful: do not include calculations of periods of inactivity in the payment!
Intermittent employment contract termination
Termination of the contract without just cause is calculated based on the average of the last 12 months of work, as provided for in Article 5 of Ordinance No. 349/2018 of the Ministry of Labor.
If the contract has lasted less than one year, the average for its duration must be calculated.
In cases of termination for just cause, the worker loses the right to receive severance pay, such as the 13th salary and the FGTS fine.
Finally, in both types of terminations there must still be formalization by the employer in eSocial.
Does the intermittent worker need to be registered with eSocial?
Yes, the intermittent worker must be registered with eSocial since 2017, the year of its creation.
Thus, to insert the intermittent workday in eSocial, the employer must complete the event S-2200 - Initial Registration and Admission/Job Entry.
So follow the tutorial below:
access the menu, click on “Employee” and then on “Admit/Register”; remuneration amount;
inform data, such as CPF, date of birth, date of admission and, of course, the type of registration – intermittent;
complete additional registration and contract information. Ready!
What are the advantages of accepting this contract model?
Now you know what are the points that made intermittent work grow so much in such a short time.
Therefore, how about a “straight to the point” list with the main benefits that prove its effectiveness?
Employer: summons according to your claim
Intermittent work allows the employer to call and pay for activities only according to their needs
As there is no frequently defined or guaranteed scale, payroll expenses only happen when there is demand and, therefore, call.
So you don't have to keep spending in times of low activity.
Employee: accept according to your time
For the employee, the contract is attractive because he himself sets up his work schedule.
This way, you have the option of accepting or not the calls, in order to gain some freedom to manage your time.
Adding to this, their rights are also assured, which does not occur in informal work, the "little job".
Thus, salary, vacations with an increase of one third, 13th, DSR, legal additional, FGTS and vacations are guaranteed!
Flexibility
Intermittent work is almost like that relationship in the world of Biology, mutualism, as it benefits both parties involved.
In addition, now the creation of new formal job openings for society is also possible!
Remember that 50% of new vacancies in 2020 were under this regime? So it is! Flexibility, like the employee, can be called upon at any time.
Source: Contábeis