Many companies face practical difficulties and legal uncertainty in meeting the requirement to hire the minimum quota of young apprentices. This happens especially in industries whose activities are classified as hazardous or dangerous by the Occupational Health and Safety Regulatory Norms. This is the case for private security companies and heavy construction, among others, who cannot hire young people between 14 and 18 years of age to meet the apprenticeship quota established in article 11, sole paragraph, of Decree No. 5,598/05.
In order to resolve this situation, in May the Ministry of Labor and Social Security (MT) published Ordinance No. 693/2017, which establishes rules for the training of apprentices in entities that provide practical experience - which are public bodies, civic organizations (Pursuant to article 2 of Law No. 13,019/2014), and the units of the National System of Socio-Educational Assistance (SINASE), according to paragraph 2, of article 23-A of Decree No. 5,598/05.
In its article 1, the ordinance provides rules for what those economic industries are where companies may apply for a Commitment Agreement to fulfill the quota via an entity that provides practical experience to apprentices, as already established by article 23-A of Decree No. 5,598/2005. Those industries are:
- cleaning and maintenance;
- private security;
- cargo transport;
- transportation of valuables;
- collective, urban, intermunicipal, and interstate transportation;
- heavy construction;
- urban sanitation;
- waterway and maritime transport;
- cattle and crop raising activities;
- outsourcing services companies;
- telemarketing activities;
- fuel sales; and
- companies whose activities are preponderantly those listed in the TIP list (Decree No. 6,481/2008).
These industries are the ones that have frequent practical difficulties in meeting the quota required by article 429 of the Consolidated Labor Laws. In addition to the legal prohibition on hiring minors under the age of 18 to work in hazardous and dangerous conditions, there is a lack of interest on the part of the apprentices themselves in working in these areas.
The existence of obstacles in fact does not exempt companies from complying with the Apprentice Law (Law No. 10,097/2000). It establishes that all medium and large companies are obliged to hire adolescents and young people from 14 to 24 years of age, by means of a special employment contract with a maximum of two years in duration. The number of apprentices must be at least 5% of the total number of employees in each establishment of the company (except those that carry out activities requiring higher education, technical and managerial functions, and positions of trust). In addition, the employer is required to enroll the young person in a apprenticeship program of a qualified entity, such as Senai (National Industrial Learning Service) or Senac (National Service for Commercial Apprenticeship), for technical and professional training compatible with the company’s industry.
By allowing certain industries to meet the apprenticeship quota by means of entities that provide practical experience, young people are not exposed to functions considered risky by the MT itself, and employers can continue their social contribution to training minors via apprenticeships.
Because compliance with the quota is individualized by establishment, the application to sign a Commitment Agrement for the companies that fit within the list published by the MT should be made to the Regional Superintendence of Labor and Employment of the state where the establishment is located, in accordance with article 28 of Decree No. 4,552/2002 (Labor Inspection Regulations - RIT). According to the recently published ordinance, the MT may accept requests from companies from other industries, at the discretion of the labor oversight board and per the terms of article 23-A of Decree No. 5,598/2005.
Once the Commitment Agreement has been signed with the MT, the company and the qualified entity engaged must establish a partnership with one of the entities that provides practical experience to apprentices in order to conduct practical classes. Pedagogical supervision will be the responsibility of the qualified entity.
In this way, the company will have support to defend itself in the event of an administrative demand by the Public Prosecutor's Office for Labor Affairs or judicial dispute, by means of verifying compliance with the quota for apprentices in an alternative manner.