by Luiz Fernando Plens de Quevedo
In the dying days of 2017, the Ministry of Labor revoked Ordinance No. 1,129 of 10.13.2017, which redefined the criteria for characterizing the exploitation of labor in conditions analogous to slavery. The new Ordinance, No. 1,293, was one of the last acts of Minister Ronaldo Nogueira, published on the same date as the confirmation of his resignation in the Official Gazette of 12.29.2017.
The new rule brings to a close the clash between the Government and sectors of society, which led, on 10.24.2017, to the suspension of the effects of the now-revoked Ordinance when it had not even been in force for 10 days, through a single-justice decision by Justice Rosa Weber, in response to an action filed by the Rede Sustentabilidade Party.
Under the new text, characterizing work in conditions analogous to slavery no longer requires the Labor Inspector to submit a police report with their report, nor is it necessary to establish that the worker was subjected to work demanded under threat of punishment, through coercion, even if performed involuntarily.
In a nutshell, all the criteria used in the previous ordinance to characterize slave labor — such as forced labor, exhausting working hours, degrading working conditions, restriction of movement due to debt owed to the employer, retention at the workplace, and retention of documents or personal belongings — are now sufficient on their own, and the objective definitions of forced labor, exhausting working hours and degrading working conditions no longer apply.
Under the Ministry of Labor’s new regulation for characterizing work in conditions analogous to slavery, the freedom to come and go and the worker’s own consent to those working conditions are no longer criteria for ruling out the offense.
The publication of the Slave Labor “Dirty List” — which causes so much embarrassment to the activities of companies investigated for the offense, since commercial transactions, commercial contracts and even financial operations are sometimes canceled or have their maturity accelerated because the individual’s or company’s name appears on the list — is once again the responsibility of the Ministry of Labor’s technical inspection staff, ending the exclusive power that the previous Ordinance, 1,129, had granted to the Minister of Labor himself.
It was speculated that, of the current 709 liability proceedings arising from subjecting workers to slave labor conditions, around 637 would be closed under Ordinance 1,129. Now, with the issuance of Ordinance 1,293, mutatis mutandis, everything goes back to the way it was — or, in truth, the way it never stopped being, since the Ordinance revoked on 12.29.2017 was in force for only 8 days before being suspended by the STF.
Everyone’s interest in the subject has indeed been renewed, as have the Ministry of Labor’s moves to make progress in punishing those who commit the offense. What must now move forward and truly emerge is society’s interest in knowing that, for all the good that inspection seeks to do, there are always abuses and excesses, especially in holding liable those who were often unaware that wrongdoing was occurring in the supply chain of their business. One must always be able to separate the wheat from the chaff.
