Finocchio & Ustra Sociedade de Advogados

In the contemporary business landscape, the issue of workplace harassment is a topic of growing importance and concern. Workplace harassment not only affects the psychological well-being of employees but can also have serious legal implications for employers and employees, in addition to potential damage to the reputation and image of companies in society and within the Judiciary itself. The workplace, whether virtual or physical, is where a significant part of people's lives unfolds, and therefore, it should be a space where all individuals feel respected, valued, and safe. However, in recent years, workplace harassment has emerged as a significant challenge, both from a legal and ethical standpoint, especially after the International Labour Organization (ILO) published Convention No. 190 (the first international treaty to recognize the right of all individuals to a world of work free from violence and harassment) and the Brazilian Government enacted Law 14,457/22, which established the Emprega + Mulheres Program and imposed multiple obligations regarding the prevention of all forms of violence in the workplace, including Workplace Harassment. ILO Convention 190 has not yet been ratified by the Brazilian National Congress, meaning it is not yet in force in Brazil, but the Federal Government submitted its text for approval on March 9th, 2023. Furthermore, the Judiciary has also been increasing its concern regarding the issue, and the National Council of Justice (CNJ) approved Resolution No. 492/23 in March, which requires the adoption of Gender Perspectives in the judgments by the Judiciary's bodies, following a protocol approved by the Working Group established by CNJ Ordinance No. 27/2021, specifically addressing how Labor Justice should deal with the issue of workplace harassment and sexual harassment in its decisions. Considering this entire scenario, the Brazilian Superior Labor Court, based on the guidelines of the aforementioned Resolution, has been convicting companies in recent decisions to pay substantial moral damages compensation due to the practice of workplace harassment, even using some concepts presented and updated by ILO Convention 190. The Superior Labor Court states in its decisions that it is the company's duty to provide a safe environment and prioritize the mental, physical, and emotional well-being of its employees, which is often not the case. Furthermore, recurrent convictions for workplace harassment can reinforce the occurrence of this practice in the corporate context, which also implies serious difficulties for companies in labor lawsuits. Furthermore, in line with the ESG (Environmental, Social, and Governance) agenda, this is also a concern of the United Nations (UN), which deeply incorporates the topic into corporate discussions through the 2030 Agenda, with specific goals of achieving gender equality, including in the workplace, promoting sustained, inclusive, and sustainable economic growth, full and productive employment, and decent work for all, as well as fostering peaceful and inclusive societies for sustainable development, ensuring access to justice for all, and building effective, accountable, and inclusive institutions at all levels (Goals 5, 8, and 16 of the 2030 Agenda). However, society is undergoing a true and rapid transformation, with structural inequalities and cultural clashes related to ethnic, gender, age, religious, and other issues that, without a collaborative, ethical, inclusive, harmonious, and respectful work environment, can lead to workplace harassment. Accordingly, companies face a tremendous challenge in terms of disseminating the topic within their structures and combating it vigorously. On the other hand, there is also a sea of opportunities to promote a collaborative and mutually respectful work environment, with the possibility of making a strong contribution to achieving a more humane, fair, supportive, and fraternal society.   Author: Giovanni Anderlini Rodrigues da Cunha Senior lawyer and leader of the advisory labor team at Finocchio & Ustra Sociedade de Advogados.      

Municipal responsibility Since 2014, all the public lighting assets have been transferred to municipal authorities due to Resolution nº 414/2010 of the Electric Energy National Agency (ANEEL). Before this, the companies responsible for the electric energy distribution managed those assets. In this sense, Brazilian cities became the sole ones responsible for providing all the utilities regarding public lighting services, including its expansion, modernization, control, operation, maintenance, and management. Those activities may demand great investments, compromising the fulfillment of other equal relevant activities under municipal jurisdiction. Why PPP? Public lighting services - if well provided - have positive externalities (private and social). It helps and supports public security, real estate appreciation, public health, local business development, etc. However, public lighting is a kind of service that does not allow municipalities to collect fees or retribution from citizens. Public lighting lacks the necessary "individual utility" for that purpose - it is a "public good," a well-known market failure. Those services are mainly financed by the Public Lighting Contribution (COSIP), a tax collected by the municipalities based (in most cases, but not in all of them) on the quantity of electric energy consumed by each taxpayer. The amount collected through COSIP has been insufficient to finance public lighting services appropriately. Given that, while the service has been sub-provided, municipalities could not simply transfer it to private companies by ordinary concession contracts (Law nº 8.987/1995). The alternative, thus, is a public-private partnership (PPP) on an administrative concession basis (in which there is no direct payment or contribution by the service users). Under this model, except for alternative projects that the private operator can eventually run, the entire project fund is derived from the contributions made by the public partner (Article 2º, §2º, Law nº 11.079/2004). Bidding process Before Law nº 14.133/2021, public lighting PPP tender offers could only be made through the “Competitive Modality.” After that, they may also happen through the “Competitive Dialogue Modality.” However, there is no evidence of the use of this later modality in public lighting PPP contracts. The process in the competitive modality is mainly divided into two phases. In one of them, formal documents of the competitors are examined, such as corporate documents, financial registers, and certificates that prove previous experience in similar projects. In the other one, the bidding commission judges the economic proposals. Those phases can be reversed according to the bidding notice. Although the law provides other bid criteria, municipalities usually select the proposal that provides the lowest value contribution. Public contribution Public contribution under public lighting PPP contracts essentially derives from financial resources collected by the municipalities based on COSIP. It does not mean that the entire COSIP will be transferred to the private partner. Traditionally, the bidding process winner offers substantial discounts on the initial public contribution. By the way, this is one among many other reasons that make PPP contracts in public lighting services so attractive to municipalities. Moreover, the public contribution can be conditioned to specific goals that have to be achieved by the private partner during the contract performance (PPP contracts tend to establish goals regarding the expansion of the public lighting net, assets modernization, service availability, etc.) Main contractual responsibilities (of the private partner) The private partner’s main responsibilities are to operate the public lighting system, assure its maintenance, keep its availability according to the levels outlined in the contract, expand the public lighting net toward uncovered areas, and modernize the public lighting assets (rendering relevant efficiency to municipalities regarding energy cost).   Luis Felipe Dalmedico Silveira Contracts Partner, Finocchio & Ustra E: [email protected]