(English) Electronic Registry of presence – New extension has postponed the implementation of the system.

[:en]Electronic Registry of presence – New extension has postponed the implementation of the system.

(Débora Félix de Ávila)

Ordinance nº 1.510 issued by the Ministry of Labor, that regulates the electronic registry of presence and the use of the Electronic Registry of Presence System – SREP, has entered into force at the date of its publication, on August 25, 2009.

According to the new system, companies with more than 10 employees that already use electronic equipment for the registry of working hours shall henceforth use the Electronic Registry of Presence (REP) in replacement to all other presence control system that use electronic means to identify the employee, treat, stock and send any electronic information regarding the presence of the employee in the company.

With this new equipment (REP) the objective is to preserve the original work day data, standardize work day registry reports and digital files for the use of the labor control authorities, in addition to avoid frauds and damages to the employees.

For this purpose, Ordinance 1510/09 has conferred to the equipment particular characteristics, of strict observance, such as: not be used for other purposes such as access control, alarm triggering, etc; not depend on any equipment or external connection to register the presence of employees; not limit the periods of registry of presence; not allow the equipment to register presences automatically; not allow the change or deletion in the data registered; allow the issuance of a printed proof to the employee for each presence registered, among others.

However, although the use of the Electronic Registry of Presence (REP) is regulated since August 2009, the deadline for the compulsory use of the equipment has been postponed for the 5th time and now will be implemented in phases, depending on the activity of the employer, as a result of the new extension granted by Ordinance 2.686, published on December 27, 2011.

New deadlines were fixed as follows:

I – As from April 2, 2012, for companies that exploit industrial activities, commerce, companies in the services sector, including, amongst others, the financial sector, transports, construction, communications, energy, health and education;

II – As from June 1, 2012, for companies that exploit agro-economic activities according to the provisions of Law n.º 5,889, of July 8, 1973;

III – As from September 3, 2012, for micro companies and small size companies, defined in Complementary Law nº 126/2006.

The confusion is due not only to the high cost of installation and maintenance of the new system, but also for the lack of equipments in the market in conformity with the new regulations.

The conformity of equipments has been resolved by the Ministry of Labor and Employment (MTE) with the registry and certification of all REP’s suppliers, so as to facilitate the acquisition of equipments that respond to the requirements of Ordinance 1510/09.

Any equipment model that does not figure in the certification list, will not be considered suitable to register the presence, and the establishment under control of the Ministry of Labor that does not respect Ordinance nº 1.510/2009 may be subject to notices and penalties.

The costs issue for the companies is still pending.

Therefore, the adequacy to the new electronic presence control system is a fact, and lacks of immediate implementation.

The risks in not following the new rules are real, due to the possibility to incur penalties decided by the Ministry of Labor, or due to the short time to adapt to the new rules.

The Labor team of Chenut Oliveira Santiago – law firm is at your disposal to clarify any issues on this topic.[:]