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COMO A JURISPRUDÊNCIA TEM INTERPRETADO O CONTRATO DE TRABALHO INTERMITENTE<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

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Uma notícia recentemente publicada no sítio eletrônico do Tribunal Regional da 2ª Região “JUSTIÇA RECONHECE NULIDADE E RESCISÃO INDIRETA EM CONTRATOS INTERMITENTES ENVOLVENDO REDE DE SUPERMERCADOS”[1]<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/a> chama novamente a atenção para o contrato intermitente introduzido pela Reforma Trabalhista, Lei 13.467 de 2017, lei que teve início de vigência em novembro de 2017.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/a><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/a><\\\\\\\/p>\\\\r\\\\n<\\\/a><\\\/p>\\r\\n<\/a><\/p>\r\n

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Cumpre verificar depois desse período de vigência da nova lei, quase quatro anos, quais são as principais discussões jurisprudenciais que têm sido levantadas sobe o tema, salienta-se que o objetivo desse artigo não será a realização de juízo de valor acerca do acerto ou não das decisões.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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Adianta-se que a jurisprudência no país está ainda distante de ser sedimentada, muito pela ausência de mais detalhamento na lei sobre a aplicabilidade do contrato intermitente, o que dá maior margem a alto grau de subjetividade das decisões judiciais e, por decorrência, à insegurança jurídica e violação ao princípio da isonomia e do direito à duração razoável do processo.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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Inicialmente, importante destacar as principais características do contrato intermitente.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

O contrato de trabalho intermitente encontra-se previsto no artigo 443, §3º da CLT, com a regulação prevista no artigo 452-A e seus parágrafos da CLT.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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Em síntese, trata-se de modalidade contratual, com vínculo de emprego, em que se pode contratar o trabalhador para prestar serviços de modo não contínuo, ocorrendo com alternância de períodos de prestação de serviços e de inatividade, sendo devido salário e as demais verbas decorrentes proporcionais (13º salário, férias, acrescidas de 1\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/3, FGTS e INSS), mediante convocação da empresa e aceitação do empregado, de acordo com a necessidade de serviço do empregador.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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Essa modalidade de contratação pode ser utilizada no ramo de bares, restaurantes e eventos, bem como, em outros onde seja comum em certos períodos maior demanda. A diferença em relação às contratações temporárias, é que na modalidade temporária, mesmo que por certo período, o contrato é contínuo, não podendo o empregador, por exemplo, dispensar o empregado em certos dias com menos demanda de trabalho, sem responder pelo devido pagamento. No caso do contrato intermitente, a convocação pode ser feita com até três dias de antecedência sem número mínimo de horas e dias e sem continuidade.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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O contrato na forma intermitente é comum em outros países, como nos Estados Unidos, Espanha, Itália e Portugal, com algumas diferenças em relação ao Brasil, dentre elas, maior número de disposições legais, certas limitações à utilização desse formato, como por exemplo, referentes à duração do contrato e à vedação de contração em certas circunstâncias e ramos de atividade.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

No Brasil, há poucos dispositivos para regular o contrato e poucas limitações expressas na lei. O contrato deve ser escrito (artigo 452-A, da CLT), há proibição de que o valor da hora seja inferior ao salário mínimo ou àquele devido aos demais empregados do estabelecimento que exerçam a mesma função em contrato intermitente ou não, e, por fim, não pode haver contratação da forma intermitente para os aeronautas (§3º do artigo 443 da CLT).<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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Em razão disso, principalmente dessa carência de disposições legais, muitas discussões foram levadas ao Poder Judiciário.  <\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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Uma das principais discussões, que ainda não foi encerrada, é quanto à inconstitucionalidade dos dispositivos. Entidades vinculadas aos trabalhadores ajuizaram ações diretas de inconstitucionalidade (ADI) no Supremo Tribunal Federal (STF), que foram apensadas (ADI 5826, ADI 5829 e ADI 6154) pretendendo que os dispositivos da nova lei sejam considerados inconstitucionais por implicarem precarização das relações de trabalho e, por decorrência violação ao texto constitucional.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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Em dezembro de 2020, o Julgamento foi iniciado. O Relator, Ministro Edson Fachin[2]<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/a>, votou no sentido de reconhecer a inconstitucionalidade dos dispositivos, sob a seguinte justificativa:<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/a><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/a><\\\\\\\/p>\\\\r\\\\n<\\\/a><\\\/p>\\r\\n<\/a><\/p>\r\n

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“Sem a garantia de que vai ser convocado, o trabalhador, apesar de formalmente contratado, continua sem as reais condições de gozar dos direitos que dependem da prestação de serviços e remuneração decorrente, sem os quais não há condições imprescindíveis para uma vida digna”,<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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Os Ministros Alexandre de Moraes e Nunes Marques votaram em sentido oposto, decidindo pela improcedência das ações para declarar a constitucionalidade dos dispositivos questionados[3]<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/a>. Segundo os Julgadores, não há violação constitucional, tendo em vista que a reforma trabalhista estabelece a garantia dos direitos sociais previstos na Constituição. De acordo com o Ministro Nunes Marques a nova modalidade contratual vai favorecer a formalização de contratos que eram firmados de modo informal.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/a><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/a><\\\\\\\/p>\\\\r\\\\n<\\\/a><\\\/p>\\r\\n<\/a><\/p>\r\n

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Houve pedido de vistas da Ministra Rosa Weber, o que gerou a suspensão do julgamento. Portanto, até o momento, há dois votos pela constitucionalidade e um pela inconstitucionalidade da norma. De acordo com o último andamento do processo, o feito foi incluído na pauta de julgamento em 17 de novembro de 2021.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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Importante destacar, que na ocasião do Julgamento, é que o STF definirá a modulação dos efeitos da decisão para os contratos em andamento, caso seja declarada a inconstitucionalidade do contrato intermitente.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

Embora o relator tenha votado no sentido de acolher o pedido de declaração de inconstitucionalidade, é provável que o resultado do julgamento seja no sentido de afastar a inconstitucionalidade, notadamente em virtude da crise econômica que atinge o país, a qual foi agravada pela pandemia. É comum nesses cenários uma maior comoção dos Poderes da República e da sociedade para viabilizar a flexibilização das normas trabalhistas ao argumento de se buscar impulsionar novos empregos e ajudar a iniciativa privada a se reerguer, com o objetivo de retomada do crescimento econômico.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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Afora a discussão quanto à constitucionalidade, a Jurisprudência formada na Justiça do Trabalho tem declarado em alguns casos a nulidade do contrato intermitente, como nas duas decisões que foram objeto da notícia publicada na página do TRT da 2º Região.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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- Nulidade do contrato pela falta de apresentação nos autos do contrato escrito, mesmo sendo incontroversa a realização do contrato na modalidade intermitente, limitação de tempo de inatividade, anotação na CTPS, rescisão e estabilidade gestacional.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

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Em um dos casos objeto da notícia, confirmando a sentença e seus fundamentos, o acórdão reconheceu a nulidade, principalmente, por não ter sido juntado aos autos o contrato escrito celebrado, um dos requisitos previstos em lei (art. 452-A, caput<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/em>, da CLT) e por entender que a empregada passou período longo sem ser convocada, por isso foi reconhecida a rescisão e a estabilidade gestacional, com base na remuneração média recebida pela empregada.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/em><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/em><\\\\\\\/p>\\\\r\\\\n<\\\/em><\\\/p>\\r\\n<\/em><\/p>\r\n

Ao analisar o acórdão[4]<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/a>, é possível verificar que foram utilizados como razão de decidir fundamentos e limitações que não estão previstos expressamente na lei, veja-se:<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/a><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/a><\\\\\\\/p>\\\\r\\\\n<\\\/a><\\\/p>\\r\\n<\/a><\/p>\r\n

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“Narra a exordial que a reclamante foi contratada em 01\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/04\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/2020 para laborar como Operadora de Caixa, na modalidade de contrato de trabalho intermitente. Aduz que foi convocada nos meses de abril e junho, todavia, no início de julho descobriu que estava grávida desde meados de maio de 2020, não tendo sido mais convocada para o trabalho.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

(...)<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

Ab initio<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/em><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong>, ressalto que nos termos do art. 452-A da CLT o contrato de trabalho intermitente deve ser celebrado por escrito, com indicação do valor da hora trabalhada, contudo, tal documento não foi juntado aos autos.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/em><\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/em><\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/em><\\\/strong><\\\/p>\\r\\n<\/strong><\/em><\/strong><\/p>\r\n

Ademais, não é razoável que uma empresa registre um empregado de forma intermitente e deixe de convocá-lo para o labor, ad eternum<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/em>, pelo tempo que lhe aprouver.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/em><\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/em><\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/em><\\\/strong><\\\/p>\\r\\n<\/em><\/strong><\/p>\r\n

Observo que a autora laborou quase todo o mês de junho de 2020.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

Todavia, após a confirmação de sua gravidez, deixou de ser convocada para o serviço de Operadora de Caixa de supermercado. <\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

Vale salientar que o ramo de atividade da reclamada não sofreu redução em razão da pandemia do Covid-19.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

Outrossim, verifico que na CTPS da obreira, fls. 16, consta o registro de período de experiência, sem qualquer menção ao alegado contrato intermitente.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

Pelo exposto, considero que o contrato de trabalho celebrado foi por prazo indeterminado.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

Destarte, a reclamante faz jus a estabilidade provisória da gestante, prevista no art. 10, II, b, do ADCT, que visa proteger, sobretudo, o nascituro.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

Tal garantia, para a empregada gestante, abrange inclusive o suposto contrato intermitente que, diga-se, em vez de proteger a trabalhadora lhe prejudicou. Isso porque, além de ter ficado sem salário, a obreira foi impossibilitada de receber o auxílio-emergencial e não há notícia nos autos de que está usufruindo da licença-maternidade.”  <\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong>Destaques acrescidos.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

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O primeiro ponto que pode ser destacado é que, embora não tenha sido juntado nos autos o contrato escrito, a contratação no formato intermitente e o valor da hora, são fatos incontroversos. Sob o aspecto do quanto disposto no artigo 374, III, do CPC, segundo o qual independem de provas os fatos incontroversos, e do princípio da verdade real, que deve orientar o processo, não parece a decisão mais acertada.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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A verdade real atende ao princípio da Justiça, e deve, portanto, ser o escopo da Jurisdição, como elucida o doutrinador, Mauro Schiavi[5]<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/a>, veja-se:<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/a><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/a><\\\\\\\/p>\\\\r\\\\n<\\\/a><\\\/p>\\r\\n<\/a><\/p>\r\n

“(...) A obtenção da verdade real, inegavelmente, atende aos princípios de justiça e efetividade do processo, sendo, portanto, um dos escopos da jurisdição, que é pacificar o conflito com justiça. Desse modo, a moderna doutrina defende a tese da superação da diferenciação entre verdade real e formal, dizendo que a verdade é uma só, a real, mas esta é praticamente impossível de ser atingida. Não obstante, todos que atuam no processo, principalmente o julgador, devem envidar esforços para se chegar ao acertamaneto mais próximo da realidade (verdade substancial) (...)”<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong> Destaques acrescidos.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

O julgamento do recurso, inclusive, foi concluído por maioria, tendo sido vencido um dos Desembargadores que considerava válido o contrato, por ser incontroversa a celebração do contrato escrito de trabalho intermitente e indevida a indenização por estabilidade, tendo em vista que não houve encerramento do contrato, veja-se teor do voto divergente:<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"Ouso divergir, eis que incontroversa a celebração do contrato escrito de trabalho intermitente, como reconhecido expressamente na prefacial, pacto este que não foi encerrado, razão pela qual injustificável falar-se na indenização da estabilidade gestacional.\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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Na hipótese concreta o contrato teve início em abril de 2020, a empregada foi convocada em abril e junho e propôs a demanda em julho de 2021, alegando a falta de convocação e pleiteando a nulidade do contrato e a estabilidade gestacional, pleitos que foram deferidos em parte pelo Poder Judiciário.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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Observa-se, sem valorar o acerto ou erro do entendimento, que limitações não impostas expressamente pela lei foram consideradas pelos Julgadores, como tempo mínimo para convocação, suposta incompatibilidade com a celebração de contrato de experiência e obrigação de anotação do contrato de trabalho intermitente na CTPS, redução ou não das atividades em virtude da pandemia.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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- Caracterização como falta grave do empregador pela ausência de convocação e consequente deferimento de indenização por danos morais.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

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A outra decisão mencionada na notícia se refere a sentença proferida pela 1ª Vara do Trabalho de Cotia – SP, que julga procedente o pedido de rescisão indireta e concede à empregada o recebimento de indenização em decorrência dos prejuízos morais gerados pela conduta da Empresa.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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A sentença considerou como falta grave, deferindo à empregada indenização por danos morais, o fato da Reclamada ter firmado contrato de trabalho intermitente e nunca ter realizado a convocação da Reclamante, por entender que houve descumprimento do dever de convocação estabelecido no § 1º do artigo 452-A, da CLT, segundo o qual: “§ 1º O empregador convocará, por qualquer meio de comunicação eficaz, para a prestação de serviços, informando qual será a jornada, com, pelo menos, três dias corridos de antecedência.”<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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Também nesse caso, não há norma expressa prevista nas disposições legais que tratam do contrato intermitente, que caracterize como falta grave a conduta do empregador que não convoca o empregado.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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- Nulidade do contrato por ausência de alternância de períodos inatividade<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

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Há ainda decisões que declaram a nulidade do contrato intermitente, por considerarem que não houve alternância entre períodos de trabalho e de pausa, para que seja verificada a descontinuidade, veja-se[6]<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/a>:<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/a><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/a><\\\\\\\/p>\\\\r\\\\n<\\\/a><\\\/p>\\r\\n<\/a><\/p>\r\n

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“Destarte, ainda considerando o demais da instrução processual, especialmente registros de jornada juntados pela recorrente (fls. 108\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/116), entendo discutível a existência de prova robusta favorável acerca de inequívoca prestação de serviços nos moldes do §3º, do artigo 443 da Consolidação das Leis do Trabalho \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"...Considera-se como intermitente o contrato de trabalho no qual a prestação de serviços, com subordinação, não é contínua, ocorrendo com alternância de períodos de prestação de serviços e de inatividade, determinados em horas, dias ou meses, independentemente do tipo de atividade do empregado e do empregador...\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\", mormente porque evidenciada a ausência de alternância entre períodos de prestação de serviços e inatividade.”<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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- Nulidade do contrato intermitente e reconhecimento do contrato ordinário pela ausência de alternância de períodos de prestação de serviços e inatividade, pela existência concomitante na empresa de empregados na mesma função, com vínculo intermitente e comum e em virtude da função estar inserida na atividade fim do empregador<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

 <\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

Outras decisões do TRT da 2ª Região apontam que a contratação na modalidade intermitente não pode ser considerada válida se houver outros trabalhadores fixos, nas mesmas funções, e se a contratação diferenciada estiver relacionada à atividade fim do empregador, salientando-se que também inexiste referida restrição expressa na lei. Veja-se o teor da decisão mencionada[7]<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/a>:<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/a><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/a><\\\\\\\/p>\\\\r\\\\n<\\\/a><\\\/p>\\r\\n<\/a><\/p>\r\n

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“Ocorre que os cartões de ponto juntados pela própria ré afastam a tese de labor somente em \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"eventos\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\". Já a presença de trabalhadores fixos que realizavam as mesmas funções denotam que a ré buscou se utilizar do denominado \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"intermitente\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\" para fins de precarizar o trabalho, uma vez que não há justificativa para a contratação como intermitente de função inerente a sua atividade empresarial principal.”<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

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Nota-se, portanto, que a jurisprudência, de fato, está ainda distante de ser sedimentada.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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Comparadas, por exemplo, a circunstância fática da primeira decisão que foi objeto da matéria publicada no sítio eletrônico do TRT da 2ª Região, que a empregada trabalhou 2 meses seguidos e não sendo convocada no terceiro, ingressou com ação e o contrato foi considerado nulo, talvez se a empresa tivesse convocado pelo terceiro mês seguido, fosse o processo levado a outro julgador, poderia ter sido anulado pela ausência de períodos sem convocação.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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Outras decisões proferidas pelo Tribunal Regional da 2ª Região consideram válidos os contratos intermitentes, mesmo diante de convocações descontínuas e na atividade fim da empresa. Veja-se[8]<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/a>:<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/a><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/a><\\\\\\\/p>\\\\r\\\\n<\\\/a><\\\/p>\\r\\n<\/a><\/p>\r\n

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\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"o fato de a força de trabalho da autora ser utilizada na atividade-fim da 1ª reclamada não justifica a declaração de nulidade do contrato de trabalho intermitente firmado coma 1ª ré, porquanto o já citado artigo 443, § 3º, da CLT, é claro ao estabelecer que o contrato de trabalho intermitente independe da atividade do empregador, não fazendo nenhuma distinção entre atividade-fim e atividade-meio”.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

(...)<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

CONTRATO DE TRABALHO INTERMITENTE. NULIDADE. NÃO OBSERVADA. O Contrato de Trabalho Intermitente é modalidade de contratação do trabalhador expressamente prevista na Lei 13.467\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/2017. Tal contrato permite que uma empresa admita um funcionário para trabalhar eventualmente e o remunere pelo período de execução desse ofício. Assim, nesse modelo, o trabalhador pode realizar o trabalho de modo esporádico, intercalando os períodos de atividade com os de inatividade. Nesse sentido, não há jornada de trabalho fixa, muito embora seja abrangida pela subordinação. Ademais, não é necessária limitação temporal, ou seja, podendo ser pactuado por prazo determinado ou indeterminado. Observe-se, ainda, que período de inatividade não é remunerado, pois é um interregno em que não há prestação de serviços. Recurso Ordinário da reclamante ao qual se nega provimento.”<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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- A introdução do contrato intermitente permitiria concluir que as contratações até então feitas sem continuidade, de modo informal, devem ter o vínculo empregatício reconhecido ao menos na modalidade intermitente<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

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Outras interpretações têm sido construídas. Em sentença[9]<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/a> proferida no âmbito do TRT da 8ª Região, que foi reformada pelo Tribunal, por exemplo, o juízo singular entendeu que a existência do contrato intermitente permite concluir que as contratações até então feitas sem continuidade, e sem vínculo, devem ter o vínculo empregatício reconhecido ao menos na modalidade intermitente, por esse fundamento e outros, reconheceu o vínculo pretendido pelo Reclamante, veja-se:<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/a><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/a><\\\\\\\/p>\\\\r\\\\n<\\\/a><\\\/p>\\r\\n<\/a><\/p>\r\n

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“Além dos argumentos expendidos até aqui, no tocante à esporadicidade alegada pela demandada, tenho entendido que, desde a promulgação da lei n. 13.467 de 2017, com a inclusão do § 3º no art. 443 da Consolidação das Leis do Trabalho, a prestação de serviços descontínua, em alguns dias do mês, mediante convocação pelo contratante no interesse e segundo a conveniência desse, também não exclui o vínculo de emprego, já que há a solução legal (contrato de trabalho intermitente) para aquela atividade descontinuada.” <\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong>Destaques acrescidos.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

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Não parece a conclusão mais acertada, sob o aspecto dos outros elementos caracterizadores da relação de emprego que precisam ser analisados.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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- O contrato de trabalho intermitente precisaria estabelecer a prestação de horas mínimas, sob pena de nulidade, pois do contrário o contrato seria admitido sem objeto determinado<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

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No âmbito do TRT da 5ª Região há decisões que consideram que o contrato de trabalho intermitente precisa estabelecer a prestação de horas mínimas, sob pena de nulidade, pois do contrário o contrato seria admitido sem objeto determinado, veja-se[10]<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/a>:<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/a><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/a><\\\\\\\/p>\\\\r\\\\n<\\\/a><\\\/p>\\r\\n<\/a><\/p>\r\n

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“CONTRATO DE TRABALHO INTERMITENTE. NECESSIDADE PERMANENTE. AUSÊNCIA DE INDICAÇÃO DE QUANTIDADE MÍNIMA DE HORAS DE EFETIVA PRESTAÇÃO DE SERVIÇOS. CONDIÇÃO POTESTATIVA. NULIDADE. A validade do contrato de trabalho firmado nesses moldes está condicionada à demonstração de uma demanda efetivamente intermitente, com períodos de atividade e inatividade, afigurando-se indispensável a indicação de uma a quantidade mínima de horas de efetiva prestação de serviços, sob pena de se admitir a formalização de contrato de trabalho com objeto indeterminado ou sujeito a condição puramente potestativa, o que é expressamente vedado pelo ordenamento jurídico nacional. É ilegal substituir posto de trabalho efetivo (regular ou permanente) pela contratação do tipo intermitente; não pode o empregador optar por essa modalidade contratual para, sob tal regime, adotar a escala móvel e variável de jornada.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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- O contrato de trabalho intermitente não pode estabelecer previamente horas mínimas e local fixo de trabalho pois isso descaracterizaria a dinâmica desse tipo de pacto que propiciaria que o empregado possa ter outros contratos com outros empregadores. <\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

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Em sentido totalmente diverso do acórdão do TRT da 5ª Região, referido no item anterior, acórdão da lavra do TRT da 3ª Região compreende que a previsão de horas e local pré-definidos no contrato implica nulidade do contrato de trabalho intermitente, que teve como finalidade a formalização dos “bicos”, e que com jornada fixa e longa e dias fixos pré-definidos, a natureza dinâmica do contrato se perderia, porque o empegado não poderia ser contratado para outros “bicos”, veja-se:<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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Contudo, na hipótese dos autos, o alegado \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"contrato de trabalho intermitente\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\" consigna o cumprimento de jornada pré-definida de segunda a sexta-feira, das 6h30min às 16h18min, com 1h de intervalo para refeição, inclusive com possibilidade de sobrejornada, durante os dias letivos (cláusulas 6ª e 7ª - fls. 11), além de local de trabalho predeterminado, o que já parece incompatível com o instituto.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

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- Outras decisões do TRT da 3ª Região reconhecem a validade do contrato de trabalho intermitente sem limitações não previstas na lei.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

 <\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

Há divergência no âmbito do TRT da 3ª Região, no qual se pode constatar que há acórdãos que reconhecem a validade do contrato de trabalho intermitente sem limitações não previstas na lei, como no caso abaixo em que houve reforma da sentença para afastar a nulidade declarada na origem.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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O tema é tão polêmico ainda que muitas vezes as divergências se verificam não apenas entre as Turmas, mas também entre os Desembargadores integrantes da mesma Turma, como no caso do acórdão abaixo[11]<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/a>:<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/a><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/a><\\\\\\\/p>\\\\r\\\\n<\\\/a><\\\/p>\\r\\n<\/a><\/p>\r\n

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“(...) vencido o Exmo. Desembargador Relator que negava provimento ao apelo. FUNDAMENTOS: a teor do art. 452-A da CLT, o \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"contrato de trabalho intermitente deve ser celebrado por escrito e deve conter especificamente o valor da hora de trabalho, que não pode ser inferior ao valor horário do salário mínimo ou àquele devido aos demais empregados do estabelecimento que exerçam a mesma função em contrato intermitente ou não\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\" (grifei).  Nessa modalidade contratual, o \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"empregador convocará, por qualquer meio de comunicação eficaz, para a prestação de serviços, informando qual será a jornada, com, pelo menos, três dias corridos de antecedência\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\", sendo certo que a recusa dessa oferta não descaracteriza a subordinação (parágrafos 1º e 2º do referido dispositivo). Além disso, \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\"o período de inatividade não será considerado tempo à disposição do empregador, podendo o trabalhador prestar serviços a outros contratantes\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\" (parágrafo 5º; grifei).  No caso, o contrato celebrado pelas partes reforçou a referida previsão legal quanto ao período de inatividade não ser tempo à disposição da ré, além de ter sido fixado pagamento de salário por hora de trabalho. Assim, sendo incontroversa a ausência de convocação da autora para a prestação laboral, impõe-se a absolvição da reclamada do pagamento de salários. Outrossim, o parágrafo 6º do já citado art. 452-A condiciona o pagamento da remuneração das férias e 13º proporcionais à efetiva prestação de serviços, não sendo devidas, pois, quaisquer verbas a tais títulos. Afastada, pois, a nulidade do contrato de trabalho intermitente firmado pelas partes, impõe-se o provimento do apelo da ré para julgar improcedentes as pretensões iniciais, ficando prejudicado o pedido recursal da autora de indenização por dano moral.”<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

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- Posicionamento do TST<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/strong><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/strong><\\\\\\\/p>\\\\r\\\\n<\\\/strong><\\\/p>\\r\\n<\/strong><\/p>\r\n

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Decisões no âmbito do Tribunal Superior do Trabalho, que analisam o mérito dos requisitos do contrato intermitente são raras, justamente por envolverem, em geral, a reanálise de fatos e provas, bem como, por esbarrarem  na análise da  transcendência, o que implica na inadmissão do recurso de revista.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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O que é possível verificar ao realizar uma busca na jurisprudência do TST é que diversos acórdãos proferidos pelos Tribunais Regionais do Trabalho do país reconhecem a nulidade do contrato intermitente por fundamentos e limitações não presentes expressamente na lei.<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/p>\\\\r\\\\n<\\\/p>\\r\\n<\/p>\r\n

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Há acórdão no âmbito do TST, da relatoria do Ministro Ivis Gandra Martins Filho, conhecido defensor da Reforma Trabalhista, que reconhece a transcendência da matéria, por se tratar de assunto novo, onde a 4ª Turma reforma acórdão da lavra do TRT da 3ª Região que havia reconhecido a nulidade de um contrato intermitente, fundamentado em restrições não previstas expressamente na lei. No Acórdão o Ministro defendendo que a nova modalidade contratual não implica precarização, ressalta que não pode haver excessos exegéticos por parte do Poder Judiciário, veja-se[12]<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/a>:<\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\/p>\\\\\\\\\\\\\\\\r\\\\\\\\\\\\\\\\n<\\\\\\\\\\\\\\\/a><\\\\\\\\\\\\\\\/p>\\\\\\\\r\\\\\\\\n<\\\\\\\/a><\\\\\\\/p>\\\\r\\\\n<\\\/a><\\\/p>\\r\\n<\/a><\/p>\r\n

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