The Supreme Labor Court decided on Thursday (21) that the hiring of Brazilian workers to perform activities on board foreign ships traveling in national and international waters must comply with Brazilian legislation, in whatever is most favorable. The decision was made by the Specialized Section on Individual Disputes (SDI-1), responsible for standardizing the jurisprudence of the TST’s Chambers.
In its full composition, the body judged eight cases involving the topic, which had been the subject of divergent interpretations among the Chambers. The ruling of Minister Cláudio Brandão, the rapporteur of one of the cases, prevailed in the judgment.
Flags of convenience
According to the minister, the so-called “Flag Law” – under which the applicable legislation is that of the flag country of the vessel – has been relativized, especially in cases of “flags of convenience or rental.” In this practice, the shipping or owning company registers the vessel in another country to be subject to more lenient laws and controls. “The consequences are extremely serious and varied, particularly regarding the violation of human rights and the dignity of workers,” he said.
He recalled that the issue is not new: in a case judged in 1964, the TST already addressed the possibility of assigning flags of countries with no tradition in navigation to circumvent the application of the most protective law. “This scenario remains current,” he emphasized.
In the case reported by the minister, the companies themselves stated that the ships where the worker had provided services flew the flag of Panama, although one was based in Switzerland and the other in the Republic of Malta. According to Brandão, Panama is on the list of countries associated with “flags of convenience” compiled by the International Transport Workers’ Federation (ITF), an international trade union organization.
More favorable law
In the cases judged, individuals were recruited in Brazil, and according to Law 7,064/1982, which deals with Brazilian workers hired or transferred to provide services abroad, Brazilian law applies when it is more favorable than territorial legislation. “When there is a more beneficial rule in domestic law, international law yields to it,” he said.
This guidance, according to Brandão, is also in Convention 186 (Maritime Labour Convention – MLC) of the International Labour Organization (ILO), incorporated into Brazilian law by Decree 10,671/2021.
The minister rejected the argument that the existence of workers in the same location subjected to different laws would generate chaos in business management. In this approach, according to him, economic repercussions would take precedence over respecting workers’ rights. He cited the construction industry as an example, to which foreign labor law applies.
The rapporteur’s vote was followed by Ministers Kátia Arruda, Delaíde Miranda Arantes, and Maria Helena Mallmann, and by Ministers Augusto César, José Roberto Pimenta, Hugo Scheuermann, Alberto Balazeiro, and Lelio Bentes Corrêa, president of the TST.
Extension of territory
The dissenting view was led by Minister Aloysio Corrêa da Veiga, who argued that in the case of an employee hired by a foreign company to work abroad, the Flag Law applies, as provided for in the Bustamante Code (Havana Convention on Private International Law, ratified by Brazil through Decree 18,871/1929).
“Brazilian legislation does not apply to Brazilian workers hired to work on cruise ships; instead, the law of the place where the service is provided should apply, as the vessels are considered an extension of their territory,” said the minister, who was the rapporteur for six of the eight cases judged. His vote was followed by Minister Dora Maria da Costa and by Ministers Breno Medeiros, Alexandre Ramos, and Evandro Valadão.
(Carmem Feijó)
Cases:
E-ARR-114-42.2019.5.13.0015
E-ED-RR-15-72.2019.5.13.0015
E-RR-1045-98.2014.5.07.0011
E-ED-RR-1877-63.2015.5.09.0651
E-ED-RR-1718-30.2015.5.09.0002
E-RR-10233-81.2016.5.09.0014
E-RR-10614-63.2019.5.15.0064
E-RR-333-16.2020.5.07.0006
