Artigos - Postado em: 04/08/2012

(English) The Statutory Director of a Company as an employee under CLT contract

[:en]The question about the possibility to hold the position of a Director hired under employment regime (CLT) is controversial. Indeed, the subject implicates different areas of law such as commercial law, international law and, of course, Labor Law.

The problem is that a director of a company is linked to the latter through its Articles of Incorporation – as a statutory director. This appointed professional has autonomy and does not have, as a rule, an employment relationship with the company. The director has the trust of the shareholders and he is not remunerated by a salary, but throughout a pro labore (which has different tax impacts), its value being decided by the shareholders of the company.

On the other hand, the Director hired under employment laws – CLT is linked to the company through an employment contract. Therefore, his employment relationship complies with inherent regular requirements such as: personal, onerous and continual work, under subordination. This last element – subordination, is a major issue for this discussion.

Indeed, subordination is the “state of dependence or obedience of the employee in relation to a hierarchy of positions or values.” [1] By subordination there is subjugation to the power or orders of a third party. According to Mauricio Godinho Delgado:

“Subordination corresponds to the antithetical pole combined with the power of direction in the context of an employment relationship. It is thus derived from the legal situation of employment whereby the employee agrees to accept the power of direction to perform his services.”

In accordance with the labor law doctrine, there are two theories concerning the labor framework of the statutory director. The first theory, called the classical or traditional one, defends the idea that there is an incompatibility between the corporate position of director and the organizational position of the employee. Consequently, a director appointed by the articles of incorporation could never be hired under employment law CLT, as he/she is autonomous. Thus, as such director represent and guide the company, he could not manage and subordinate himself.

The second theory, called, modern or interventionist, seeks to understand the possibility for a statutory director to be, simultaneously, hired under employment law “CLT” and appointed by the Articles of Incorporation. One of his defenders, Otavio Bueno Magano says that, according to Law 6404/76 (Law of public companies), directors are subordinate to the Board and therefore may be removed at any time without any justification, which reveals a characteristic trait of labor employment.

Moreover, it is worth mentioning that the “d” of § 1st of Law 6404 provides that the director of a public company must inform the General Assembly about the “terms of the employment contracts that have been signed by the company with directors and high-level employees”.

Besides, Article 499 of the Consolidation of Labor Laws – CLT indirectly recognizes the possibility of a director to be hired under an employment contract. Indeed, it provides that “there is no stability in the exercise of executive positions, management, or others of immediate trust of the employer”. Or, if the director’s stability is ruled by the CLT, such set of rules – designed for employment contracts only – admits to rule the labor relationship of the directors.

Thus, law 6404/76 and even the CLT recognizes the possibility of a statutory director to be regarded as an employee, with the rights attached to the employment contract, provided that the factual and legal elements of the employment relationship really exist.

[1] FERREIRA, Aurélio Buarque de Holanda. Novo Dicionário da Língua Portuguesa. 2. ed. Rio de Janeiro: Nova Fronteira, 1986. P. 1621.

 

Débora Félix de Ávila (Attorney from the Labor department)

Júlia Bandeira de Melo Campos (Intern from the Immigration department)[:]

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