Companies have challenged in court the obligation to pay social security contributions (employer's, third-party, and Environmental Labor Risk - RAT) on amounts paid to minor apprentices, considering the peculiar nature of this labor relationship.
Following the constitutional guideline, the Apprenticeship Law (Law 10,097/00) is a strategic and relevant measure for the integration of young people into the labor market, which contributes to the prevention of child labor. The hiring of minor apprentices is a mandatory requirement dealt with in article 429 of the Consolidated Labor Laws[1] and article 51 of Decree 9,579/18, which imposes a duty on establishments to employ the equivalent of 5% to 15% of workers whose jobs require professional training.
The apprenticeship contract is a special labor contract set out in writing for a fixed term of up to two years, signed with young people over 14 years of age and under 24 years of age, as provided for in article 428 of the Consolidated Labor Laws and article 45 of Decree 9,579/18.
According to the tax authorities, young apprentices are linked to the General Social Security Regime (RGPS) as a compulsorily insured person, which justifies the requirement of social security contributions. This interpretation is supported by article 6, II, of RFB Normative Instruction 971/09[2] and article 8, II, of INSS/PRES Normative Instruction 77/15,[3] which classified young apprentices as compulsorily insured persons under the RGPS.
However, considering the peculiarity of this relationship, the companies contend that minor apprentices are optionally insured under the terms of articles 14 of Law 8,212/91[4] and 13 of Law 8,213/91[5], such that social security contributions are not necessarily due on their remuneration.
This understanding is supported by Decree 9,579/18, which removes apprenticeship contracts from the employment relationship by establishing that failure to comply with the legal and regulatory provisions would result in the nullity of the contract and the establishment of an employment relationship directly with the responsible employer.
It is worth pointing out that Decree-Law 2,318/86, when dealing with the sources of Social Security funding and the hiring of minors at companies, prohibited linking to social security minors between 12 and 18 years of age who attend school and work four hours a day.
Recent decisions handed down by the 3rd Federal Court of Santo André and the 9th Federal Court of Manaus have established that social security contributions should not be levied on the remuneration of minor apprentices. These decisions were based on the non-employment nature of the apprenticeship contract and on the effectiveness of Decree-Law 2,318/86, which rules out the levying of social security contributions.
Given this scenario, we believe that the issue of the minor apprentice is not yet mature in the case law and, due to the resistance of the tax authorities, material debates are likely to occur in the coming years.
[1] Article 429. Establishments of any kind are obliged to employ and enroll in courses of the Brazilian Apprenticeship Services a number of apprentices equivalent to a minimum of five percent and a maximum of fifteen percent of the workers existing in each establishment, whose jobs require professional training.
[2] Article 6. The following must contribute as an insured employee: (...)
II - apprentices, older than fourteen (14) and younger than twenty-four (24) years old, except for the disabled, to whom the maximum age limit does not apply, as provided for in article 428 of the Consolidated Labor Laws (CLT), approved by Decree-Law No. 5,452, of May 1, 1943, as amended by Law No. 11,180, of September 23, 2005; (...)
[3] Article 8. The following are insured persons in the employee category, as per subsection I of article 9 of the Social Security Regulation, approved by Decree No. 3,048, of May 6, 1999: (...)
II - apprentices, fourteen to twenty-four (24) years old, subject to the methodical professional training of the trade in which they works, observing that hiring may be done by the company where the apprenticeship will take place or by non-profit entities, whose objective is to assist adolescents and provide professional education, in compliance with the requirements of Law No. 10,097, of December 19, 2000, and Law No. 11,180, of September 23, 2005; (...)
[4] Article 14. An optionally insured is any individual over fourteen (14) years of age who joins the General Social Security Regime, by means of a contribution, as provided for in article 21, as long as it is not included in the provisions of article 12.
[5] Article 13. An optionally insured is any individual over fourteen (14) years of age who joins the General Social Security Regime, by means of a contribution, as long as he is not included in the provisions of article 11.
