Apprenticeship quota: the calculation base error that cost R$ 100,000

Most infraction notices and public civil actions concerning apprenticeship do not arise from a refusal to hire apprentices. They arise from a calculation done wrong.

The company hires, believes it is compliant, and discovers years later that the base on which it calculated the quota was smaller than it should have been. A recent ruling by the Regional Labor Court of the 2nd Region shows how this happens and what it costs.

The case

A company in the promotions, events and merchandising sector was sued by the Labour Prosecution Office for failing to comply with the statutory apprenticeship quota.

The central issue was the exclusion of the sales promoter role from the calculation base. The company advanced two arguments. First, that the promoter's activity does not require technical and vocational training, a prerequisite for inclusion in the quota. Second, that it already fulfilled the purpose of the law by hiring young people aged eighteen to twenty-four under ordinary contracts.

The 17th Panel of the Regional Labor Court of the 2nd Region rejected both arguments and ordered the company to pay R$ 100,000 in collective moral damages, allocated to the Diffuse Rights Defence Fund, and set a deadline of one hundred and eighty days to regularise its procedures and include the role in the calculation. The case is number 1001122-97.2023.5.02.0081, with Justice Eliane Aparecida da Silva Pedroso as reporting judge.

This is a second-instance decision, pending judgment of a motion for clarification.

Where the error lies, and why it is common

Article 429 of the Brazilian Labor Code (CLT) requires establishments to hire apprentices in a number equivalent to a minimum of five per cent and a maximum of fifteen per cent of the workers in each establishment whose roles require vocational training.

The phrase "roles that require vocational training" is where companies go wrong. It appears to leave room for the company's own assessment, and it does not.

Article 52 of Decree 9,579/2018 establishes the Brazilian Classification of Occupations as the technical parameter for determining which roles form part of the calculation base. The choice of an objective parameter is deliberate, because it removes discretion over classification from both the company and the inspector.

The same provision defines the exclusions, and the list is short. Only roles requiring technical or higher-level professional qualification, positions of direction, management or trust, and workers engaged under the temporary work regime fall outside the base.

Sales promoter fits none of those categories. The ruling further recorded that the Ministry of Labour classifies the occupation as one requiring vocational training and that compatible courses are available, which removes any argument of practical impossibility.

The lesson is direct. The company does not choose which roles enter the calculation. The official classification does.

Hiring young people does not satisfy the quota

The company's second argument deserves attention because it reveals a frequent confusion between youth employment policy and the statutory apprenticeship obligation.

Hiring people aged eighteen to twenty-four under ordinary contracts is a legitimate management choice and is in no way irregular. It simply does not satisfy the quota.

Apprenticeship has its own structure. It requires a special fixed-term employment contract, enrolment in a programme of methodical technical and vocational training, a qualified training institution and articulation between practice at the company and theoretical content. That combination is what characterises the institution, and its absence is what inspection examines.

An ordinary contract, even when signed with a young person, generates no methodical training, engages no training institution and produces none of the social effect the law intends. That is why it does not replace hiring apprentices.

Why the award was for collective moral damages

The sum does not compensate any specific worker. It responds to the injury of a diffuse right, namely the access of adolescents and young people to vocational training and to the labour market.

Hence the allocation to the Diffuse Rights Defence Fund, and hence also the weight of the repetition element. Prolonged non-compliance, maintained even after challenge, is what sustains the characterisation of collective harm and influences the amount awarded.

That design has a relevant practical consequence. Later regularisation does not erase the period of non-compliance, although it may weigh favourably in setting the amount. A company that acts in advance is in a different position from one that regularises after being sued.

The review worth doing beforehand

The diagnosis is straightforward and fits into a few steps:

• List every role on the payroll by establishment, since the quota is calculated per establishment rather than for the company as a whole.
• Compare each role against the Brazilian Classification of Occupations, rather than deciding internally what requires vocational training.
• Apply only the exclusions provided for, namely technical or higher-level roles, positions of direction, management or trust, and temporary workers.
• Recalculate the quota on the corrected base, observing the floor of five per cent and the ceiling of fifteen per cent.
• Check the availability of compatible courses with qualified institutions, because genuine unavailability of a course is an argument that must be demonstrated, not presumed.
• Document the process. Calculation records, reference date, list of roles and the criterion applied. That set of documents is what supports the company's position before the Labour Prosecution Office.

The firm's practice

Reviewing the calculation base of statutory quotas, running apprenticeship compliance diagnostics, negotiating conduct adjustment agreements and defending companies in public civil actions on the subject form part of the firm's corporate employment law practice. Each case, however, depends on its own circumstances, facts and documents.

Conclusion

The case does not punish a company that refused to hire apprentices. It punishes a company that calculated the quota on a smaller base than it should have, relying on its own assessment of what requires vocational training.

The apprenticeship calculation has an objective parameter, and it sits in the Brazilian Classification of Occupations. The exclusions are few and are written down. Outside them, the role counts.

For the employer, the useful step is not initially a legal one, it is managerial. List the roles, compare them against the official classification and redo the calculation. Companies that do so find the problem before it arrives as a public civil action, and at incomparably lower cost.

Reference basis for review

• CLT, article 429 (obligation to hire apprentices at between five and fifteen per cent of workers whose roles require vocational training).
• CLT, article 428 (definition of the apprenticeship contract and the requirement of methodical technical and vocational training).
• Decree 9,579 of 22 November 2018, article 52, establishing the Brazilian Classification of Occupations as the parameter for the calculation base and limiting the exclusions to roles requiring technical or higher-level qualification, positions of direction, management or trust, and temporary workers.
• Law 10,097 of 19 December 2000, which established the legal framework for apprenticeship.
• Law 7,347 of 24 July 1985, on the allocation of awards in public civil actions to the Diffuse Rights Defence Fund.
• Judgment of the 17th Panel of the Regional Labor Court of the 2nd Region, case 1001122-97.2023.5.02.0081, reporting judge Justice Eliane Aparecida da Silva Pedroso, second-instance decision pending a motion for clarification.
• Brazilian Bar Association Rule 205/2021, to preserve the informational character of the content.

Informational content only. This does not constitute legal advice, an offer of services or a promise of results. Any concrete assessment depends on the facts, the documents and the context of each case.