Brazilian Judges, Prosecutors, and Legislators Spared from Administrative Reform Bill

RIO DE JANEIRO, BRAZIL – The government‘s administrative reform proposal will create five new types of employment for government employees, only one of which will guarantee job stability after three years. The text retains the requirement for public tenders, but will also enable admission by simplified selection for some jobs.

The change will only apply to employees in the Executive, Legislative, Judiciary, states, and municipalities who are hired after the reform becomes law. Those who are already serving will maintain their tenure rights and will not have their salaries cut, assured the Ministry of Economy.

For future public administration employees, admission by public bid will be valid for typical state positions (which find no parallel in the private sector, the only category that will have the right to stability) and indefinite term positions.

In both cases, there will be an initial trial period, which will be at least two years in the case of typical state positions, and one year for positions of indefinite duration. The trial period will be a stage of the public bid and will not automatically entitle the job-holder to the full-time position. The best-assessed candidates will become permanent jobholders.

Admission by simplified selection is applicable to positions having a fixed term, as well as upper management and advisory positions (which will replace part of the upper-level positions).

“Under no circumstances may the employee be disconnected by arbitrary decision. This decision must be impersonal, grounded, and well structured. If it were different, the judiciary itself could correct this injustice,” said Wagner Lenhart, Secretary of Personnel Management and Performance of the Ministry of Economy.

For existing government jobholders, who will maintain their tenure rights, the only possibilities of dismissal will be a judicial decision, a disciplinary infraction, and inadequate performance. For new hires, the permissible grounds for dismissal will be defined by statute.

Tenure remains for current servants

According to the Ministry of Economy, the tenure of employees who have already joined the civil service continues under the same terms of the current Constitution.

The new rules do not include current federal employees and will not apply to members of the federal Legislative or Judicial branches (deputies, senators,  prosecutors and magistrates, for instance); nor will they apply to the military. The state or municipal powers will be required to draft their own texts should they wish to change their rules.

Gleisson Rubin, Deputy Secretary of Debureaucratization of the Ministry of Economy, stated that, under current rules, all civil servants have the right to tenure, even in activities that he classified as “support, accessory”.

“Since 1988, all public employees are stable, no matter the nature of their function. They have more strategic functions, even the most operational ones. This makes no sense anywhere in the world. Tenure exists in several democracies, but it fulfills the purpose of retaining the staff personnel that maintain state activity. Not those with support activities, accessory ones,” he declared.

Currently, the dismissal of government employees can only occur through a final judicial decision and disciplinary infraction. As an example, the government says that in 2018, 388 employees were dismissed (0.07 percent of the federal government workforce). If the government’s proposal is approved in Congress, it will no longer be necessary to wait for a final decision.

Ending the “distortions”

The proposal provides for the elimination of what the government calls “distortions,” benefits to employees such as retroactive increases (no increase can have an effect on previous periods), vacations longer than 30 days per year, and additional service time.

It also provides for the end of sabbatical leave, a right that a governmental employee has every five years to take three months leave to address matters of personal interest; it has not existed in the federal government since 1999, but still exists in 20 of the 27 states.

According to the presentation released by the Ministry of Economy, the following will be eliminated:

• compulsory retirement as a punishment;
• the payment of compensation installments without legal provision;
• additional or indemnity for non-effective substitution;
• reduction of working hours without reduction of remuneration, except in health cases;
• career progression or promotion based exclusively on length of service;
• the incorporation into the salary of amounts related to the exercise of positions and functions.

Among the reasons for the elimination of benefits, the Ministry of Economy mentions the distance from other citizens’ reality, the absence of uniform and general rules about advantages and benefits, the “unfair” impact on society, which burdens public accounts.

Accumulation of positions

In parallel, the government’s proposal for administrative reform relaxes the rules for accumulating posts. According to the current rules, civil servants, except for teachers and health professionals, are not allowed to have more than one  governmental positions.

Under the government’s proposal, the prohibition would continue to apply, but only to those having typical career paths, who retain their tenure rights.

In the case of other civil servants, job accumulation may be permissible, but only if “timetable compatibility is observed”.

According to the economic area, the current rules for the accumulation of positions are “rigid and not objective”, and ultimately discourage the involvement of candidates with the “most suitable profile for a given position”.

Reform in stages

The new regime will be part of the first stage of administrative reform, which includes sending a Proposal for an Amendment to the Constitution (PEC) to outline the new structure and lay the foundations for the organizational modernization of public administration.

There will also be two other stages, according to the Ministry of Economy. Stage 2 provides for the sending of bills proposing one “complementary law” (PLP) and six ordinary statutes (PL). The PLP and one of the PLs will deal with job performance. The other statutes will regulate the consolidation of positions, functions and bonuses, career guidelines, modernization of working methods, institutional arrangements, and adjustments to the civil servant’s statute.

Stage 3 provides for another “complementary law” to create the so-called “New Public Service”, with the new regulatory framework for career paths, remuneration rules, and the rights and duties of the newly hired public servants.

Source: O Estado de S. Paulo