Following up on our series on the Infralegal Labor Regulatory Framework, we will discuss in this article the impacts of the guidelines for the elaboration and revision of regulatory standards (NRs) for safety and health at work.
Established by Decree 10.854/21, the guidelines intend to guide the elaboration and revision of regulatory standards, giving greater uniformity and harmony to their texts and their structure, in addition to seeking to simplify, debureaucratize and allow the constant updating of their contents.
In general, the guidelines seek to align and balance infralegal labor standards for work safety and health with the needs and particularities of labor relations and economic activities.
The decree defines seven guidelines for the elaboration and revision of these standards:
- reduction of risks inherent to work, prevention of accidents at work and occupational diseases and promotion of occupational safety and health;
- dignity of the human person, social value of work, valorization of human work, free exercise of economic activity and pursuit of full employment;
- technical or scientific basis, timeliness of standards with the current stage of technological development and compatibility of Brazilian and international regulatory frameworks;
- harmonization, consistency, practicality, coherence and uniformity of standards;
- transparency, reasonableness and proportionality in the exercise of regulatory competence;
- simplification and debureaucratisation of the content of regulatory standards; and
- the State's subsidiary and exceptional intervention on the exercise of economic activities, including differentiated treatment of low-risk economic activity to health and safety in the workplace.
As already highlighted in our series, the desire for simpler and more unbureaucratic labor legislation has been manifested by both employees and employers and, in addition to serving as one of the guidelines for the drafting and review of regulatory standards for safety and health at work, has become one of the major pillars of the new Regulatory Framework Infralegal Labor.
The changes intended with the definition of the guidelines were consolidated with the edition and publication of Ordinance 672/21 of the Ministry of Labor and Social Security (MTP), which defines all procedures and steps to be followed and respected for the elaboration and review of regulatory standards of safety and health at work.
One of the most relevant aspects of the procedures for the elaboration and revision of these standards is the participation of members of the organizations most representative of workers and employers, as well as representatives of the federal executive branch, through the Permanent Joint Tripartite Commission (CTPP), established by Decree 9,944/19.
The CTPP, formed by members of the federal government, representatives appointed by the business confederations and the union centers, in the context of the preparation and review of NRs, has as one of its duties the elaboration of studies and participation in the process of elaboration and review of regulatory standards.
Ordinance 672/21 also provides for the mandatory updating of regulatory stock, at least every 5 years, which will ensure the periodic examination of the standards, again in compliance with the guideline that indicates the need to update them.
Before the publication of the Regulatory Framework, in the absence of specific and predefined procedures that would enable the revision of regulatory standards in a systematic and transparent manner, the infralegal labor legislation was limited and, consequently, lame in relation to the legal system as a whole, creating contradictions and legal uncertainty.
In this scenario, many of the legislative changes brought by Law 13.467/17, also known as Labor Reform, ended up not being accepted or understood in the texts of regulatory standards.
An example is the lack of harmony between the new rules of the telework regime and the evaluation of the number of employees for the dimensioning of the Internal Commission for Accident Prevention (CIPA) and specialized services in Safety Engineering and Occupational Medicine (SESMT).
This is because the lack of updating of NR-4 and NR-5 has left gaps in the obligations of companies that rely on teleworking professionals. Although duly registered as employees, these workers do not work in the company's premises, leaving doubt as to whether or not to compute them for the formation of CIPA and SESMT contingents.
In the same sense, we discuss the possibility of outsourcing the physician that composes the SESMT. NR-4 expressly provides that the physician should be employed, which is not reflected in the Labor Reform, which brought the possibility of outsourcing the activities end and a half.
Because it is still very recent and considering the procedure for the preparation and revision of NRs and their annexes, no appropriate changes have yet been made to regulatory standards. However, along with the definition of the structure and procedures for review and elaboration, Ordinance 672/21 also brought news in relation to toxicological examination and embargo procedures and interdiction of companies and machines.
As for toxicological tests, to which professional drivers are subject, according to Art. 168 of the CLT, there was a change, mainly, in the technical aspects, to follow the provisions of Conatran Resolution 691/17. Ordinances 116/15 of the Ministry of Labor and Social Security and 1,343/19 of the Special Secretariat of Social Security and Labor of the Ministry of Economy were consolidated and revoked through the ordinance.
In relation to the procedures of embargoes and interdiction of companies and machines, the previous wording was changed, mainly to update the procedures related to embargoes and interdictions for the electronic environment. The measure generally expedites the procedure of administrative proceedings, consolidating and updating the text of Ordinance 1,069/19, also repealed by Ordinance 672/2021.
It is important to highlight that the changes in the procedures related to embargoes and interdictions relate to the use of electronic tools both by the labor auditors, in the drafting and transmission of embargoes and interdictions, as well as by employers, through electronic petitioning, which will give greater speed to the administrative procedure.
Although they bring very positive innovations to the labor normative set, the procedures for elaboration and updating can still be quite bureaucratic, mainly because the topics addressed are eminently technical and usually require more careful analysis and deeper revisions in relation to their foundations.
The objective of the guidelines, however, is, in fact, to simplify and update labor standards of safety and health, facilitating their understanding and compliance. In this respect, the novelties brought by Decree 10.854/21 and Ordinance 672/21 are indispensable and promise to bring various benefits to labor relations.
The provisions of Decree 10,854/21, published on November 11, enter into force 30 days after its publication. Ordinance 672/2021, published on November 11, will be in force from December 10.
In the coming weeks, we will continue to publish articles with the aim of exploring, in a simple and practical way, the main changes brought by decrees, ordinances and normative instructions, in addition to clarifying the main impacts for companies.
Click here to read the other articles in the series.