While it is becoming rare to take early retirement, the Judiciary of São Paulo has recognized that the activities of a motorcyclist, or “motoboy”, must be recognized as special, capable of taking early retirement at the INSS (National Institute of Social Security). Even when there is no express provision in social security standards, it is possible to systematically interpret other standards to recognize the danger and arduousness inherent in the activity.
During the last week before the holidays, this reasoning was taken up by the TRF-3 (Federal Regional Court of the 3rd Region), a place in the country where there is a significant concentration of motorcycle couriers. According to information from the IBGE (Brazilian Institute of Geography and Statistics), Brazil has never had so many people working as delivery people or app drivers. There are more than 1.7 million drivers, 475 thousand professionals whose main activity is delivery, the majority of whom are motorcyclists.
The STJ (High Court of Justice) had established a direction in the sense that, even after a regulatory change in 1997, which removed the classification of professional categories and limited harmful agents to those of a physical, chemical and biological nature, the judicial recognition of the work specialty remains viable after this stage, provided that it is proven by any appropriate means of proof.
The federal judge, Gabriela Araújo, of the TRF of the 3rd Region applied to the case this understanding of the STJ, which admitted the recognition of the specialty of the function, even in the absence of formal normative provision concerning dangerousness. However, it is up to the motorcyclist to prove permanent exposure to risky conditions, which can be done by means of technical documents issued by the employer.
Araújo cited the “vulnerability of the rights of most of these workers, the majority of whom are registered as independent service providers or, worse, in a completely informal situation.”
The decision is important because it serves as a national parameter for other categories exposed to unsanitary or dangerous conditions, even if, due to the inertia of our policies, there has been no regulation. In addition, it also guarantees the constitutionally guaranteed fundamental rights of workers.
This subject is already in the sights of the STF (Federal Supreme Court), which already has three votes for the constitutionality of the 2019 pension reform concerning workers exposed to harmful agents.
The STF will immediately analyze whether:
- It is possible to remove the minimum age for special retirement
- It is possible to convert special time into common time for periods worked after the promulgation of Constitutional Amendment 103/2019, which established a minimum age for granting the benefit.
- Is it possible to keep the entire amount for a special pension
If we consider the history of the STF’s latest decisions on social rights, it is likely that the court will be inclined to accept the financial arguments of the INSS, rather than considering the social aspect that affects workers.
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