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A INSPEÇÃO DE PRODUTOS, A CERTIFICAÇÃO DA QUALIDADE E O DIREITO INTERNACIONAL

O comércio internacional de mercadorias traz uma série de desafios logísticos e riscos inerentes ao transporte de cargas, que se inicia quando do seu embarque na origem (marítimo, aéreo, ferroviário ou terrestre) até a sua descarga no destino, tais como diferenças de qualidade ou quantidade.

Assim, um importador de determinado item, que busca adquiri-lo em outro país, estabelece previamente os padrões pretendidos, procede com pedidos de compra, financiamentos, seguro, contratação de frete internacional, enfim, empenha uma logística complexa na expectativa de recebimento de produtos nos exatos termos contratados.

Após a realização de ditos procedimento, finalmente o produto é entregue em seu destino e, muitas vezes, este não corresponde aos exatos termos esperados.

Para fins de mitigar o risco no comercio internacional, desenvolveu-se o mecanismo da inspeção internacional de mercadorias, onde empresas inspetoras atuam na verificação das cargas nos diversos estágios do processo de exportação/importação, inspecionando ditas mercadorias desde a sua fabricação e pré-embarque, coletando amostras durante o processo de carregamento e emitindo laudos técnicos a cada estágio do transporte internacional.

No caso de transporte marítimo de produtos, os riscos a carga exportada são diversos, desde a contaminação dos produtos pela presença de resíduos diversos nos porões do navio, intempéries, como chuva, calor excessivo, infestação de pragas, entre outros que podem levar as mercadorias a perderem a sua qualidade.

Assim, as empresas internacionais de inspeção cumprem um papel fundamental no comercio internacional, auferindo as condições e o peso dos bens comercializados no momento de transbordo, conferindo a quantidade dos mesmos e o cumprimento de todos os demais requisitos regulamentares relevantes de diferentes regiões e mercados do mundo.

Os procedimentos de inspeção adotados envolvem grandes desafios, uma vez que se trata de carregamentos de grandes volumes de mercadorias, a exemplo, de minérios, de petróleo, de produtos agrícolas como soja e milho, que são embarcados por toneladas métricas, o que levou as empresas inspetoras a desenvolverem técnicas de medição, tais como a “arqueação”, que é a avaliação efetuada com base em uma fórmula de cálculo do volume interno de uma embarcação, utilizando-se como referência o pontal e a imersão de cada navio.

Este processo de medição segue um padrão internacional estabelecido pela Convenção Internacional sobre a Arqueação de Navios, 1969 (ICTM 1969, International Convention on Tonnage Measurement of Ships, 1969), da Organização Marítima Internacional.

Para fins de avaliação da qualidade das mercadorias, o procedimento envolve a coleta de amostras dos produtos (amostragem), as quais são submetidas a análises laboratoriais e testes diversos visando detectar, a exemplo, o percentual de presença de determinado minério em um grande lote de carga a ser embarcado em favor de um importador no estrangeiro, a segurança de determinados itens (a saúde humana, ao ambiente), o desempenho de produtos destinados ao consumo, sempre em consonância com as Normas e Regulamentos aplicáveis.

O resultado dos procedimentos analíticos é a Certificação do Produto, consistindo-se em um Laudo Técnico indicativo dos volumes, qualidade, pureza e demais características inerentes da mercadoria destinada à exportação/importação.

As principais empresas inspetoras são formadas por instituições multinacionais sediadas, em sua maioria, em países da Europa com presença mundial, em alguns casos em mais de 150 países distintos.

A razão desta presença global é justamente para permitir a inspeção de determinada mercadoria em sua origem e no seu destino, permitindo uma comparação padronizada do volume e da qualidade embarcada com a recebida.

As empresas inspetoras internacionais de mercadorias são estruturadas como entidades independentes de terceira parte, atuando de modo imparcial, integro e ético, sujeitando-se a normas internacionais que regulamentam as suas atividades.

Visando regular interesses e negócios internacionais envolvendo partes em jurisdições distintas, criaram-se mecanismos de controle uniformes adotados por estas entidades inspetoras, que fazem valer regras idênticas em países distintos, com legislações absolutamente distantes uma das outras.

Para fazer valer estes princípios internacionalmente reconhecidos, as empresas inspetoras se obrigam reciprocamente a pautar a sua conduta profissional na honra e na ética profissional para com seus clientes e concorrentes e a atuar com independência, honestidade e veracidade nos resultados apurados quando da prestação de seus serviços.

Quando um determinado exportador contrata uma empresa inspetora para realizar a verificação de suas mercadorias, esta empresa inspetora não se obriga a apresentar um Laudo Técnico de Avaliação nos exaTos termos esperados pelo exportador, mas sim, refletindo os exatos resultados apurados através dos testes e medições efetivamente realizadas.

Com o objetivo de estabelecer termos e condições uniformizadas a regulamentar as atividades de inspeção internacional de cargas, estabelecer metodologia e garantir os princípios de confiança e integridade as empresas inspetoras internacionais se associaram e instituíram a IFIA - International Federation of Inspection Agencies.

A IFIA é uma Federação de Comércio com sede em Londres que tem por objetivo promover a melhoria dos métodos analíticos, as Normas Técnicas, os procedimentos de inspeção e as regras de segurança aplicáveis, além de pregar o reconhecimento global do Setor, garantindo a confiança e ética na execução dos serviços prestados pelas empresas inspetoras.

Para aderir a IFIA, a empresa inspetora candidata é obrigada a implementar o Código de Ética (IFIA) e a prestar serviços de supervisões e controles em padrões de qualidade reconhecidos internacionalmente, bem como fomentar o permanente aperfeiçoamento de suas atividades profissionais.

Para gerenciar os riscos associados às operações comerciais internacionais, o importador/exportador deve sempre se resguarda mediante a contratação de serviços de uma empresa de inspeção, a qual irá auxiliá-lo no gerenciamento de riscos, no rastreamento das suas mercadorias e na perfeita apuração da quantidade e da qualidade destas mercadorias, mitigando prejuízos financeiros.

ADVOCACIA ESPECIALIZADA EM EMPRESAS DE CERTIFICAÇÃO, INSPEÇÃO E TESTES LABORATORIAIS

>Notas Bibliográficas

http://www.ifia-federation.org/content/wp-content/uploads/Compliance_Code_3rd_Edition_-_April_2007.pdf

http://www.agricultura.gov.br/vegetal/importacao/vigilancia-agropecuaria

http://portal.anvisa.gov.br/setor+regulado/publicacao+setor+regulado/inspecao+e+certificacao

http://www.ascb-br.com.br/index.php/institucional

http://www.inmetro.gov.br/metlegal/servicoArqueacao.asp

http://www.inmetro.gov.br/metlegal/metBrasil.asp

http://www.inmetro.gov.br/legislacao/detalhe.asp?seq_classe=3&seq_ato=249

https://www.uscg.mil/hq/msc/tonnage/docs/TM_Convention_Draft_Text_Version_With_Figures.pdf

http://www.imo.org/pages/home.aspx

http://www.inmetro.gov.br/organismos/

http://www.jurisite.com.br/textosjuridicos/texto558.html

FOREIGN WORK IN BRAZIL

When a foreign worker provides services in Brazil the laws governing the contract are the laws of the country of origin or the laws of Brazil? This special article is about the foreign employee in Brazil and decisions of the Brazilian Labour Court on the demands arising from these relationships.

TST (Brazilian Supreme Labour Court) cancels precedent on the principle of "lex loci executionis".

The policy of the Labour Court was that the legal relationship should be governed by the laws of the country of service delivery, as specified in Statement of Precedent No. 207/TST, which was canceled by the Supreme Labor Court in April, 2012, with base on the vote of the Vice- President Minister Maria Cristina Peduzzi in the Process 93.2000.5.01.0019-RR-219000.

The summary, published in 1985, adopted the principle of lex loci executionis claiming to be the legal relationship governed by the labor laws of the country of service delivery and not those of local hiring. But the Court has long extended to all professional categories the application of Law No. 7.064/1982 that guarantee only to employees of engineering companies abroad, the right to labor more beneficial standard (whether the country of employment or service delivery).

And the legislature, aware of the law that established itself in TST came through the Law No. 11.962/2009, changing the wording of Article 1 of Law No. 7.064/82, extending the right to all workers employed in Brazil transferred by their employers to provide services abroad.

"Recent jurisprudence constructs, which have removed the application of Abstract No. 207... Indicate the prevalence of the principle of more favorable rule on the principle of territoriality," Peduzzi said the minister, adding that this trend has also been observed in the legal from other countries.

Foreign workers have the same rights as Brazilians.

The remarkable growth of the Brazilian economy in the recent years attracted the interest of large numbers of foreigners to work in Brazil. According to statistics from the Ministry of Justice (2012) there was a 57% growth in the number of foreign workers, reaching a total of 1.51 million in December last year (2011).

It should be noted at this juncture, the increase in the flow of immigrants from the countries of South America, as Bolivians, Peruvians and Paraguayans, mostly without a college degree and who see an opportunity here to improve their living conditions.

What is the profile of these foreigners who come to work for our country? A lot of young people have been trained in search of new experiences in smaller companies, which offer the opportunity for rapid growth. One cannot fail to mention illegal immigrants, which, despite this condition, constitute a significant workforce, as the Bolivians and Peruvians working as street vendors and laborers in the construction industry and clothing, especially in the State of São Paulo, with low education and qualification.

When working in the country, the foreigner shall have the same labor rights of an employee native of Brazil, as 13th salary, vacation and FGTS 30 days, among others.

Also worth mentioning the standard journey of eight hours per day or 40 per week, with one day off, preferably on Sundays.

There are numerous decisions by the Labor Court, in which foreigners claim the recognition of rights under the employment relationship.

The Third Chamber of the Superior Labor Court ruled that the Brazilian Labor Court has jurisdiction over the action of an Argentine engineer who worked for years concomitantly in Brazil and Argentina.

Fired after 23 years working in a company in the area of telecommunications engineering with subsidiaries in Brazil, the engineer asked the recognition of employment and rights arising. But had requests denied at the first and second instances.

The Minister Alberto Bresciani, rapporteur of the case, as there was service in Brazil "because there is no denying the national jurisdiction."

Another case, judged by the Sixth Class of TST in September 2006, opened an important precedent. A worker Paraguayan illegally in Brazil, won the right to sue thru the Labor Court after exercising the function of electrician for 17 years in a small company and have been dismissed without receiving severance payments and FGTS.

The rapporteur Minister Horacio de Senna Pires, granted the worker's appeal based on constitutional principles and device Mercosul Protocol of Cooperation, which provides for equal treatment among those born in countries that have signed the pact (Argentina, Brazil, Paraguay and Uruguay), in their respective territories.

Article 3 of the Protocol provides that "citizens and permanent residents of one of the States Parties shall enjoy the same conditions of citizens and permanent residents of another State Party, free access to the jurisdiction of that State for the protection of their rights and interests".

Requirements for work in Brazil

As in any country there are legal requirements for the stay of foreign workers in Brazil could not be different. It was Law No. 6.815/80, regulated by Decree No. 86.715/81, which defined the legal status of these workers in our country and created the National Immigration Council (CNI) - organ of the Ministry of Labor and Employment responsible, among other things, the formulation of immigration policy and coordination of their activities in the country.

The CNI establishes and directs the granting of work permits for foreigners who intend to stay here for some time or permanently. This authorization required by Brazilian consular authorities, is necessary for the granting of temporary or permanent visa.

The Ministry of Foreign Affairs issued a consular authorization registered in the passport, called "visa", allowing the worker to enter and remain in the country.

The visa can be temporary or permanent, and in the first case for those who see the country on a cultural vacation, mission studies, business, as an artist or athlete, student, scientist, radio correspondent, newspaper, television or agency foreign news, among others. Since the permanent visa is for those who wish to reside permanently in Brazil.

Since 2006 there was an increase in the number of permits for foreign workers. This is due, according to Paulo Sergio Almeida, former general coordinator of Immigration at the Ministry of Labour and Employment, the increasing investments in Brazil, mainly in the sectors of industry, oil, gas and energy, and that, due to the acquisition of equipment abroad.

There is a demand for the "coming of professionals specialized in supervision and implementation of the most sensitive steps in the deployment process of the equipment and technology transfer," Almeida said in an article published on the website of the MTE. But remember that the basic requirement for this professional is not coming occupy vacancy that may be filled by Brazilian workers.

However, this specialized professional is required to prove qualification and / or experience, which should be done through a request for authorization from the Ministry of Labor and Employment, through the presentation of diplomas, certificates or declarations of institutions which have played their activities.

New criteria for the authorization of these professionals work with temporary visas were established by Resolution No. 64 of 09.13.2005 of the National Immigration Council. According to this resolution, to demonstrate the qualifications or experience the candidate will need to demonstrate experience of two years alternately in the performance of mid-level profession, with minimum education of nine years or one year experience in the exercise of high level profession.

Liability to work underpaid

Despite the significant increase in South American migrants in recent years, remember that many arrive in Brazil illegally, with little education and few qualifications. How come in search of better living conditions, are subject to low-paid jobs. Proof of this are the recent cases reported in the press of immigrants from Bolivia and Peru found in conditions of contemporary slavery in São Paulo, workshops in sewing, making garments for a diversity of fashion labels.

In this sense, the Labor Court has dismissed civil suits filed by the Ministry of Labour against exploitation of this labor. A prime example was the action filed by MPT São Paulo in February 2012 against a large retail store for exploiting workers - mostly.

This was the first civil action on slave labor involving foreigners in urban Brazil. The SP-MPT requested, the Labor Court of São Paulo to advance relief (immediate suspension of this practice), plus punitive damages to the collective of workers worth £ 5million, to be reverted to the Fund for Workers (FAT). By the time the civil action was not dismissed.

After learning of the BBC report on a group of 25 foreigners working in the factory of a giant commodities producer in the Federal District, who worked in the poultry slaughter by halal method and lived in poor conditions accommodation in company, MPT and the Ministry of Labor conducted inspections to investigate allegations of mistreatment.

The case of this factory repeats in several Brazilian states.

Another unit of this giant commodities producer, located in the municipality Paraná State was processed by the Ministry of Labor of Parana through civil action in the Labor Court which granted an injunction banning the work of 30 Muslims in a drive by the company for outsourced perform halal slaughter.

According to prosecutors, outsourcing - made by the Group of Halal Slaughter - is irregular because the slaughter of animals is core activity of the company.

But Subsection 2 Specialized in Individual bargaining (SDI2) of the Superior Labor Court unanimously allowed the appeal in ordinary injunction to revoke the injunction issued by the Labor Court.

For the rapporteur Minister Pedro Paulo Manus, keeping these outsourced employees in the establishment of the giant commodities producer, with receipt of wages and other labor guarantees caters to corporate interests more than the prohibition on the provision of services, as suggested by the Labor Court, because there was guarantees the hiring of personnel would be exempt.

Comprehending the Legal Principles of Brazilian Labor Law

When a foreign worker provides services in Brazil the laws governing the contract are the laws of the country of origin or the laws of Brazil? This special article is about the foreign employment in Brazil and principles adopted by the Brazilian Labor Court on the demands arising from those relationships.

"The TST (Brazilian Supreme Labor Court) formally adopted the principle of "lex loci executionis" to regulate the labor relationships in Brazil." 

The policy of the Labor Court is that the legal work relationship shall be governed by the laws of the country were the services are delivered as specify the Statement of Precedent No. 207/TST stated by the Supreme Labor Court in April, 2012, with base on the vote of the Vice- President Minister Maria Cristina Peduzzi at the Process 93.2000.5.01.0019-RR-219000.

The summary embraced the principle of "lex loci executionis" claiming to be the legal relationship governed by the labor laws of the country where the services are effectively render and not the country of the worker´s previous hiring.

However inversely to this principle the Law No. 7.064/1982 allow a different rule for Brazilians working abroad.

Such law (previously limited to Brazilian employees of engineering companies working abroad), enable the Brazilian companies rendering service in another country to choose to enforce the labor legislation with more beneficial standards, as taxation, vacation periods, etc.

The legislature that came through the Law No. 11.962/2009 changed the wording of Article 1 of Law No. 7.064/82, extending such rights to be enforced over all workers employed in Brazil and transferred by their employers to provide services abroad.

"Recent jurisprudence have removed the application of Abstract No. 207 that indicated the prevalence of the principle of more favorable rule over the principle of territoriality," said the Minister Pedruzzi, adding that this trend has also been observed in the legal legislation from other countries.

- Non-Brazilians have the same rights as Brazilians when working in Brazil:

The remarkable growth of the Brazilian economy in the recent years attracted the attention of large numbers of non-Brazilians to work in Brazil. 

According to statistics from the Ministry of Justice (2014) there was a 57% growth in the number of foreign workers, reaching a total of 1.51 million in comparison to December of last year (2013).

It should be noted at this juncture, the increase in the flow of immigrants from other countries of South America, as Bolivians, Peruvians and Paraguayans, mostly without a college degree and who saw an opportunity to improve their living conditions in Brazil.

- What is the profile of the non-Brazilians who come to work into the country? 

A lot of young people have been trained and are in search of new experiences in smaller companies, which offers the opportunity for rapid growth. 

One cannot fail to mention illegal immigrants, which, despite this condition, constitutes a significant workforce laboring as street vendors, at the construction industry and in clothing manufactures, especially in the State of São Paulo, usually with low education and qualification.

When working in the country, the foreigner shall have the same labor rights of an employee native of Brazil, as 13th salary, vacation, Social Security rights, among others. Also worth mentioning the standard journey of eight hours per day or 40 per week, with one day off, preferably on Sundays.

There are numerous decisions by the Labor Court, in which foreigners claim the recognition of rights under the employment relationship, but it is not unanimous.

The Third Chamber of the Superior Labor Court ruled that the Brazilian Labor Court has jurisdiction over the action of an Argentine engineer who worked for years concomitantly in Brazil and Argentina. Dismissed after 23 years working as a contractor in a company on the area of telecommunications with subsidiaries in Brazil, the engineer asked for recognition of employment and the several rights arising from this type of labor contract. But he had this requests denied at the first and second instances.

Another case, judged by the Sixth Class of TST in September 2006, opened an important precedent. A Paraguayan illegally working in Brazil, won the right to be recognized as a formal employee after exercising the function of electrician for 17 years in a local small company. The rapporteur Minister Horacio de Senna Pires, granted the worker's appeal based on constitutional principles and the Mercosul Protocol of Cooperation, which provides equal treatment among those born in countries that have signed the pact (Argentina, Brazil, Paraguay and Uruguay), in their respective territories. Article 3 of the Protocol provides that "citizens and permanent residents of one of the States Parties shall enjoy the same conditions of citizens and permanent residents of another State Party, as well to free access to the Courts in the jurisdiction of that State for the protection of their rights and interests".

- Legal requirements to work in Brazil

As in any country there are legal requirements for non-Brazilians work in Brazil and it could not be different.

It was Law No. 6.815/80, regulated by Decree No. 86.715/81 that defined the legal status of these workers in the country and created the National Immigration Council (CNI) -Organ of the Ministry of Labor and Employment responsible, among other elements, for the formulation of immigration policy and coordination of the work activities in the country.

The CNI establishes and directs the granting of work permits for foreigners who intend to stay provisionally or permanently.The Ministry of Foreign Affairs issues a consular authorization to be registered in the passport - a "visa", allowing the worker to enter, work and remain in the country.

The visa (temporary or permanent) is the first obligation to be observed by those who enter in the country on a cultural vacation, business, as an artist, athlete, student, scientist, radio correspondent, newspaper, television or agency foreign news, among others. By the other hand, the permanent visa is specifically granted for those who wish to permanently reside and work regularly in Brazil.

Since 2006 there was an increase in the number of work permits issued for foreign workers. This is due (according to Paulo Sergio Almeida, former general coordinator of Immigration at the Ministry of Labour and Employment) to the increment of investments in Brazil, mainly in the sectors of industry, oil, gas and energy.

"There is crescent demand for the coming of professionals specialized in supervision and implementation of the most sensitive performances in the deployment of equipment and technology transfer," Almeida said in an article published on the website of the MTE. 

However, this specialized professional are required to prove their qualification and / or experience, which should be done at the Ministry of Labor and Employment, through the presentation of diplomas, certificates or declarations provided by educational institutions.

A new criteria for the authorization of these professionals work with temporary visas were established by Resolution No. 64 of 09.13.2005 of the National Immigration Council. According to this resolution, to demonstrate the qualifications or experience the candidate will needs to demonstrate experience of a 2 (two) years alternately in the performance of mid-level profession, with minimum education of nine years or one year experience in the exercise of high level profession.

- Liability over underpaid work

São Paulo Labor Court has dismissed a civil suit filed by the Public Ministry of Labor (MPT) against exploitation of workers via underpaid salaries. A prime example was the action filed by MPT São Paulo in February 2012 against a large retail store for exploiting workers - mostly.

This was the first civil suit on "slave labor" involving foreigners in urban facilities in Brazil. The SP-MPT requested, the Labor Court of São Paulo to advance relief (immediate suspension of this practice), plus punitive damages to the collective of workers worth £ 5 million, to be reverted to the Fund of Workers Assistance (FAT). By the present time the civil action was not dismissed.

A BBC special program reported the situation of a group of 25 foreigners working in the factory of a giant commodities producer in the Federal District, who worked in the poultry slaughter by halal method that were living in poor conditions of accommodation in company. The MPT and the Ministry of Labor conducted inspections to investigate those allegations of mistreatment. But the case of this factory repeats in several other Brazilian States.

Another unit of this giant commodities producer, located in the municipality of Parana State was processed by the Ministry of Labor of Parana through civil action in the Labor Court which granted an injunction banning the work of 30 Muslims working as outsourced manpower to perform halal slaughter.

According to prosecutors, outsourcing - as made by the Group of Halal Slaughter - is irregular because the slaughter of animals is the core activity of the company.

Finally, companies interested in using non-Brazilian in the execution of its activities in Brazil should seek detailed information about the local legislation in order to properly calculate the costs, taxes and other rights incident over wage as per the Brazilian Labor Law.

ABOUT THE AUTHOR: Mauricio Ejchel

Expert in International Law, Civil, Commercial Planning and Labor Law, Mauricio Ejchel holds a Bachelor of Law Degree from the Pontifical Catholic University of the State of São Paulo in 1994 and is partner at the law firm MF Ejchel Advocacy. As a consultant lawyer provides legal consultancy to domestic and foreign companies, and is also an experienced litigation attorney pleading before the Brazilian Courts in a considerable number of lawsuits and providing services in a wide ranges of location thru partner offices in several regions in Brazil and abroad.