Put Christian Fernandes Rosa and Beatriz Wehby – 22/04/2020

Provisional Measure 945, of April 4, 2020, sought to ensure a safer work environment for workers in the port sector, preventing Labor Management Agencies (OGMO) from assigning workers who present symptoms compatible with COVID-19. Vulnerable workers, including those over 60 years of age, for example, should also be excluded from assignments for temporary port work.

In return, the MP determines that, while the impediment to scheduling persists, the worker will be entitled to receive a monthly compensatory indemnity, equivalent to 50% of the average of his/her remuneration with OGMO, considering the last 6 months. The expenses of OGMO for the payment of these indemnities will be shared among the port operators that demand temporary workers, in proportion to the amount of service demanded from the Labor Management Body.

It is important to highlight that, with such determinations, the Provisional Measure directly impacts the balance of port lease contracts previously in view of the increased costs with the casual port worker.

The Provisional Measure itself, in its article 3, §4, has already anticipated the legal treatment to be provided, considering the impact on the operating costs of private activity in Organized Ports: “In the event that the increase in costs for casual port work resulting from the compensation referred to in this article has an impact on lease contracts already signed, these must be changed in order to promote economic and financial rebalancing..”

In fact, from the contractor's perspective, the rebalancing of the economic-financial equation is ensured by the Constitution itself, and is considered an essential element in the legal regime of contracts with the Government. This is because this balance is formed as an equation that considers the obligations assumed by the contractor, on the one hand, and the corresponding economic compensation, on the other. And only one aspect of the relationship cannot be changed. Therefore, in view of the increase in costs, the contractor is prohibited from claiming the maintenance of this economic-financial balance, which is a clear example of an exceptional, unforeseen situation that authorizes the rebalancing of port lease contracts.

The Public Law & Compliance team at Mazzucco & Mello Advogados has extensive experience in public-private contracts in the port sector and is available to provide any clarification regarding the new measures.