2023-08-15 12:18:27
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Quality of being insured at the INSS: Understand how it works so you don’t lose your rights Maintaining the quality of insurance for intermittent workers responds to the rules established for employees, the mandatory insured category of Social Security, in which intermittent workers are inserted.
Practically not mentioned in the social security legislation, due to the novelty of the regulation of this employment contract, born from the labor reform of 2017, the intermittent scenario underwent a legislative turnaround with decree number 10,410 of 2020, responsible for bringing further clarification about the operation of this contract for social security purposes.
What is an intermittent worker?
Being in the same rule as the employee for the maintenance of the quality of insured, does not place the intermittent in the same labor rules of conventional employment. It is necessary to understand that the equation only works for the INSS.
According to article 9, I, “s”, of decree 3.048/99, the intermittent worker is the person hired “for the provision of services, with subordination, on a non-continuous basis, with alternating periods of provision of services and inactivity, in accordance with the provisions of § 3 of art. 443 of the Consolidation of Labor Laws [alternância de períodos de prestação de serviços e de inatividade, exceto aeronautas].”
In this way, considering that the work of the intermittent is not necessarily continuous, the INSS must be informed of the periods of provision of services and periods of inactivity (article 19, § 10, Decree 3048/99).
The mode of operation of intermittent work may be reflected in remuneration, possibly in a variable amount. For this reason, if the intermittent cannot prove the value of the contribution wages (declared remuneration), the period without proof will be based on the minimum wage, allowing future recalculation by presenting the intermittent of his employment contract with the indication corresponding to the effective remuneration (Article 36, § 2, § 3 of Decree 3048/99).
Does registration in the work book guarantee social security security?
No! Registration in the work card does not remove the contributory nature of Social Security. This means that only those who pay the contributions on time guarantee the maintenance of the status of insured in the INSS.
In the case of intermittent workers, who are insured employees, the employer is responsible for the responsibility (Article 34, I, Law 8213/91). In the event of default by the company or employer, the employer will be charged with penalties based on the information kept by the INSS through the national register of social information (CNIS).
Art. 34. In calculating the value of the monthly income of the benefit, including that resulting from an accident at work, the following shall be computed:
I – for the insured employee, including the domestic worker, and the independent worker, the contribution wages referring to the months of contributions due, even if not collected by the company or by the domestic employer, without prejudice to the respective collection and application of the applicable penalties, observing the provisions of § 5 of art. 29-A;
It is likely that the intermittent has more than one employer, that is, he has concomitant intermittent jobs (simultaneous). In this case, for applying the benefit salary, the arithmetic averages are calculated in relation to all jobs (Article 100-B, § 2, Decree 3048/99).
A very important aspect brought about by Article 19-E of Decree 3048/99 is the new rule for acquiring, maintaining the quality of insured and grace period due to a minimum contribution salary limit:
“Art. 19-E. As of November 13, 2019, for the purpose of acquiring and maintaining the quality of insured, grace period, of contribution time and calculation of the benefit salary required for the recognition of the right to RGPS benefits and for reciprocal counting purposes, only competences whose contribution salary is equal to or greater than the minimum monthly limit of the contribution salary will be considered [um salário mínimo].”
If the sum of the intermittent worker’s remuneration in a month does not reach a minimum wage, he must supplement the payment with the INSS on his own initiative, remembering that all remuneration can be added to reach this limit.
This supplementation may be carried out by the dependents, in the event of the death of the insured person for the purpose of recognizing the right to a death pension, pursuant to Article 19-E, § 7, Decree 3048/99.
Accident at work and grace period
An accident at work exempts the grace period (minimum payment of months to the INSS) for disability benefits (Article 26, II, Law 8.213/91).
This does not mean that it is unnecessary to maintain the quality of insured, as the intermittent must be active or at least in a grace period (authorization by law for staying in the INSS without contribution, in the specific cases of article 15 of law 8213/ 91).
It must be remembered that, due to Law 13,846 of 2019, the accident aid, that is, the benefit for partial and permanent disability, does not guarantee the maintenance of the quality of the insured person. Therefore, if the intermittent worker has suffered some sequel (injury consolidation) that does not completely disable him, but harms him, he must continue to contribute to the INSS, even if he enjoys the benefit of the accident allowance.
If the intermittent loses the status of insured, he must contribute again with half of the grace period to access the sickness benefit and permanent disability retirement (6 monthly contributions), except in the case of an accident of any nature or illness at work/ occupational. In cases where the law waives the grace period, there is no need for a new fulfillment.
Let’s think about the case of the intermittent that is linked to two employment contracts on 10/20/2020. The two services rendered are identical for different employers, suppose he delivers food. However, on 10/25/2020 he had an accident on a motorcycle on the course of the activity. As it is considered an accident, there is no grace period to be met and he would be insured since 10/20, when he started the activity.
It is necessary, however, to meet the minimum limit of one salary as the amount declared to the INSS for remuneration, on which the social security contribution will be levied. The lower amount now requires supplementation, at the expense of the worker, because contributions below the minimum wage will not be computed for any purpose, in accordance with Decree 10,410/20.
The issue is problematic insofar as the grace period mentioned by law (article 24, law 8.213/91) talks about the need for a minimum number of months, and not a minimum contribution amount, and Constitutional Amendment 103/2019, when it includes Article 195 of the Constitution, § 14, was limited to providing a minimum limit for the purpose of counting contribution time, without extending to other issues.
Another criticism that is made is in relation to the value of the minimum contribution to be computed. Intermittent workers can work in a system of hours, days or months (article 443, paragraph 3 of the CLT), and it is reasonable to anticipate that the supplementation of the contribution is not accompanied by the effective remuneration, since the contributory aspect is fixed to the monthly receipt, disregarding contributions on a chart of hours or days.
Finally, it should be mentioned that article 443, paragraph 3 of the CLT is being questioned by the Federal Supreme Court (ADI number 6154), proposed by a union, precisely to question contracts for the provision of services in hours and days that would make it very flexible workers’ remuneration and safety, especially during periods of inactivity, when a minimum wage level has not been established. All these nuances will, in fact, have some social security repercussions.
brief conclusions
The novelty and subsequent increase in the situation of the intermittent worker in the Brazilian scenario will still bring a series of judicial developments and INSS positions regarding the particularities of discontinued service provision.
Although the species has recently been admitted to the country’s legal system, in reality it has existed for a long time in day-to-day work relations, mainly to supply a market demand that was not met by temporary contracts or part-time work.
Despite the temporality and discontinuation of the service, the background of the employment relationship is relatively regular, as the need for the provision does not exhaust itself with the occasional activity, which is renewed in seasons.
Some care must be taken in order to avoid a legitimate and harmful precariousness of the work relationship, if remuneration criteria and some security features are not well established, for example.
If this is your situation, it may be interesting to negotiate with the employer to formalize this contract, since, as mentioned earlier, it will be fundamental for calculating the contribution salary for the intermittent employee.
Whenever there are doubts about how to provide services in the form of an intermittent contract or the payment of social security contributions, we suggest that you seek a specialized lawyer to solve your doubts.
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