Temporary work in Brazil: when to use it, deadlines and rules

What temporary work is

Law 6.019/1974, as amended by Law 13.429/2017, defines temporary work as work performed by an individual hired by a temporary work agency, which places them at the disposal of a client company to meet the need for the transitory replacement of permanent staff or a complementary demand for services (Article 2).

The relationship involves three parties: the temporary work agency, which hires and pays the worker; the client company, where the service is performed; and the worker. The law provides that there is no employment relationship between the client company and the workers hired by the temporary work agency, whatever the client's line of business (Article 10, caput). The current regulation is Decree 10.060/2019.

When hiring is permitted

The law allows temporary work in two cases. Outside them, the arrangement loses its legal basis and is at risk of being recognized as a direct employment relationship with the client company.

• Transitory replacement of permanent staff: covering vacations, maternity leave, sick leave and other temporary absences of permanent employees
• Complementary demand for services: demand arising from unforeseeable factors or, when it results from foreseeable factors, of an intermittent, periodic or seasonal nature (Article 2, § 2), such as year-end sales or harvests
• Hiring temporary workers to replace striking workers is prohibited, except in the cases provided for by law (Article 2, § 1)
• The contract may cover both support activities and core activities of the client company (Article 9, § 3)

Time limits: 180 days, extension and interval

With respect to the same employer, a temporary work contract may not exceed 180 days, consecutive or not (Article 10, § 1). It may be extended by up to 90 days, consecutive or not, beyond that term when it is shown that the conditions that justified the hiring persist (Article 10, § 2). The overall limit is therefore 270 days.

A worker who has completed these periods may only be placed at the disposal of the same client company under a new temporary contract 90 days after the end of the previous contract (Article 10, § 5). Hiring before this interval constitutes an employment relationship with the client company (Article 10, § 6).

In practice, track the start, extension and end dates of each temporary worker, including any earlier contracts of the same worker with the same client company.

The contract with the temporary work agency

The temporary work agency must be a legal entity registered with the Ministry of Labor (Article 4). Before hiring, check the agency's registration and standing. The contract between the agency and the client company must be in writing and contain, among other points, the elements listed in Article 9 of the law.

• Identification of the parties
• The reason justifying the demand for temporary work
• The term of the services
• The value of the services
• Provisions on the worker's safety and health, regardless of where the work is performed

Temporary workers' rights

Article 12 of Law 6.019/1974 guarantees temporary workers a set of rights. The main one is pay equivalent to that of employees in the same category at the client company, calculated on an hourly basis, with the minimum wage guaranteed. Decree 10.060/2019 details these rights, and the temporary contract also involves contributions such as FGTS (the Severance Pay Fund): Law 8.036/1990 (Article 20, IX) allows withdrawal on the normal termination of a fixed-term contract, including that of temporary workers governed by Law 6.019/1974.

• Pay equivalent to that of employees in the same category at the client company
• An eight-hour working day, with overtime paid
• Proportional vacation
• Paid weekly rest
• Night-work premium
• Compensation for dismissal without cause or normal end of the contract, equal to 1/12 of the pay received
• Work accident insurance and social security coverage

The client company's responsibilities

Even without an employment relationship, the client company has obligations. It must ensure safety, hygiene and health conditions when the work is performed on its premises or at a location it designates (Article 9, § 1), and extend to temporary workers the same medical, outpatient and meal services provided to its own employees (Article 9, § 2).

The client company is secondarily liable for the labor obligations relating to the period of temporary work (Article 10, § 7). If the temporary work agency goes bankrupt, the law makes the client company jointly liable for social security contributions, pay and compensation relating to the period in which the worker was under its direction (Article 16). It is therefore advisable to require proof of payments and contributions throughout the contract.

The probationary contract provided for in the sole paragraph of Article 445 of the CLT does not apply to a temporary worker who is hired by the client company (Article 10, § 4). If the company decides to hire the temporary worker directly, the direct hire follows the CLT's own rules.

How it differs from outsourcing and fixed-term contracts

In outsourcing, the contracting company transfers the performance of an activity to a service provider (Article 4-A of Law 6.019/1974), which hires, pays and directs the work of its own employees. The focus is the contracted service, without the cases and time limits of temporary work. In temporary work, the client company receives the worker to meet a transitory need, for a limited period.

A fixed-term contract is entered into directly between the company and the employee under the CLT. Article 443, § 2, allows this type of contract for services whose nature or transitory character justifies a predetermined term, for business activities of a transitory nature, and for probationary contracts. The maximum term is two years (Article 445), with a single extension (Article 451), and a new fixed-term contract with the same employee within six months is subject to the rule in Article 452.

Practical tips for using temporary work well

• Record the reason for hiring in writing (which employee is being replaced or what complementary demand exists)
• Track the 180-day term, the extension of up to 90 days and the 90-day interval between contracts with the same client company
• Extend only when the conditions that justified the hiring still exist, and document the proof
• Check the temporary work agency's registration and follow up on proof of wages and contributions
• Include temporary workers in safety onboarding and ensure the same access to the cafeteria and medical services
• Do not use temporary workers to replace strikers or to cover a permanent need of the company