Companies that have difficulties in meeting quotas for people with special needs because of the nature of their business activity have obtained an important precedent in the Labor Courts to try to make this requirement more flexible.

In a unanimous decision, the Section Specialized in Collective Bargaining of the Superior Labor Court (TST) recognized the validity of a collective bargaining agreement clause that established special criteria for calculating the quota for employees with special needs for private security companies.

This quota is provided for in Law No. 8,213/1991. In its Article 93, this legal text states that companies with more than 100 employees must fill 2% to 5% of their positions with rehabilitated workers or people with special needs.

Since the law does not make exceptions to this obligation, many companies debate in court the impossibility of meeting the quota when there is an incompatibility between the duties performed by their employees and the special needs of disabled or rehabilitated persons.

The decision of the TST affirmed the validity of a collective bargaining clause signed between the labor unions of companies and workers in private security of Tocantins, which set as a basis for calculating the quota the number of administrative employees of the companies.

Understand the case:

The Public Labor Prosecutor’s Office in Brasilia (MPT) filed a lawsuit against the Union of Security Workers in the State of Tocantins (SINTVISTO) and the Union of Private Security Companies, Transportation of Valuables, Training Courses, and Electronic Security of the State of Tocantins (SINDESP). The MPT argued for unenforceability of section 10 of the collective bargaining agreement signed between them, which provided as a parameter for calculating the quotas required by Article 93 of Law 8,213/1991 only the number of employees in the administrative departments in the private security companies.

Based on the need to ensure social inclusion of people with disabilities, the MPT argued that the percentages provided for in the law should apply to all workers at the companies, since there is no exception in the legal text for the type of economic activity carried out.

The TST upheld the decision by the Regional Labor Appellate Court of the 10th Region to the effect that the exercise of the role of a security guard, regulated by Law No. 7,102/1973, requires certain physical and mental qualities of workers, including the bearing of arms and defense of self, the property, and the people being protected, something considered to be incompatible with the situation of people with special needs or limitations.

The justices pondered that the unions did not refuse to attend to the legal reserve of vacancies for people with disabilities, but only restricted the calculation basis for the administrative positions, which can be adequately filled by these workers. In their decision, the justices also highlighted the difficulty of hiring disabled people able to perform security duties, as demonstrated in the defense by the employers' union.

Case: TST-RO-76-64.2016.5.10.0000.
Source: TST- 4/18/2017.