🇧🇷 巴西 × 勞動契約與試用期

勞動契約與試用期 — Brazil

Status: Content filled via web research.
Local currency: BRL (Brazilian Real)
Governing law: Consolidacao das Leis do Trabalho (CLT), with major reform via Lei 13.467/2017

1. 主要法源 (Primary Sources)

• 法典：Consolidacao das Leis do Trabalho (CLT) — Decreto-Lei No. 5.452/1943, as amended 🟢
• 相關條文範圍：Articles 442-456 (Employment contract), Article 443 (Contract types), Article 445 (Maximum duration), Article 451 (Renewal), Article 452 (Successive contracts cooldown) 🟢
• 重要修法：
  • Lei 13.429/2017 (March 31, 2017): Outsourcing (terceirizacao) — allows outsourcing of all activities including core business. 🟢
  • Lei 13.467/2017 (November 11, 2017): Reforma Trabalhista — introduced intermittent work contracts, modified various CLT provisions (54 articles amended, 43 added, 9 revoked). 🟢
• 主管機關：Ministerio do Trabalho e Emprego (MTE) 🟢
• 主管機關公布網址：https://www.planalto.gov.br/ (legislation), https://www.gov.br/trabalho-e-emprego/ (ministry) 🟢
• 憲法基礎：Constituicao Federal de 1988, Article 7 — fundamental labor rights 🟢

2. 核心規定 (Core Provisions)

2.1 契約類型 (Contract Types)

• 法條：🟢 — CLT Articles 442, 443, 443-A (added by Lei 13.467/2017)

• 內容：
  Brazil recognizes the following employment contract types:

  1. Contrato por prazo indeterminado (Indefinite-term contract): The default and most common type. No fixed end date. 🟢
  2. Contrato por prazo determinado (Fixed-term contract): Permitted only in three specific circumstances (Article 443, paragraph 2): 🟢
     • a) Service whose nature or transitory character justifies a predetermined term
     • b) Temporary business activities (atividades empresariais de carater transitorio)
     • c) Contrato de experiencia (probationary/trial contract) — see Section 2.3
  3. Contrato de trabalho intermitente (Intermittent work contract): Introduced by Lei 13.467/2017. Worker is called upon to provide services alternately, with periods of inactivity. Must be formalized in writing. Payment per hour/day of work, with immediate proportional payment of vacation, 13th salary, rest pay, and FGTS. 🟢
  4. Contrato de trabalho temporario (Temporary work contract): Governed by Lei 6.019/1974, as amended by Lei 13.429/2017. Maximum 180 days (consecutive or not) within a 12-month period, extendable by an additional 90 days. Used for replacing absent regular employees or meeting extraordinary demand. 🟢

• Terceirizacao (Outsourcing) — Lei 13.429/2017 & Lei 13.467/2017：

  • Since 2017, outsourcing of all activities (including core business / atividade-fim) is permitted. 🟢
  • The Supremo Tribunal Federal (STF) confirmed the constitutionality of unrestricted outsourcing. 🟡
  • However, an 18-month quarantine applies: a company cannot dismiss an employee and rehire them as an outsourced worker within 18 months (Article 5-C, Lei 6.019/1974, added by Lei 13.467/2017). 🟢

• 原則 — Primazia da realidade (Substance over form)：
  Regardless of the contract label, if the essential elements of an employment relationship exist (pessoalidade, habitualidade, subordinacao, onerosidade), the relationship is deemed an employment contract under CLT. 🟢

2.2 書面要求與必要條款 (Written Form & Mandatory Clauses)

• 法條：🟢 — CLT Articles 442, 443, 29

• 內容：

  • Employment contracts may be express or tacit (Article 442) — i.e., written form is not mandatory for indefinite-term contracts. The employment relationship can be established through the mere provision of services. 🟢
  • However, the employer is required to register the employment in the worker's Carteira de Trabalho e Previdencia Social (CTPS) — the work and social security booklet — within 5 business days from the start of employment (Article 29, as amended by Lei 13.467/2017). 🟢
  • The CTPS registration must include: start date, salary, special conditions (if any). Since 2019, the CTPS has been digitalized (CTPS Digital via the eSocial system). 🟢
  • Fixed-term contracts (including contrato de experiencia) should be documented in writing for evidentiary purposes, though the CLT does not explicitly void unwritten fixed-term agreements. 🟠
  • Intermittent contracts must be in writing and contain: identification of the parties, hourly or daily rate (not less than minimum wage or the rate paid to other employees in the same function), and place of service provision. 🟢

• 必要條款：
  While the CLT does not prescribe a rigid list of mandatory clauses as some jurisdictions do, the following are required by law or necessity: 🟢

  1. Identification of employer and employee
  2. Function/position (cargo)
  3. Salary (remuneracao)
  4. Working hours (jornada de trabalho)
  5. Duration (for fixed-term contracts)
  6. Start date
  7. CTPS registration number

• 罰則：Failure to register the employee's CTPS incurs a fine of BRL 3,000 per unregistered employee (BRL 800 for micro/small enterprises), per Article 47 of the CLT as amended. 🟢

2.3 試用期長度與規則 (Probation Period Length)

• 法條：🟢 — CLT Articles 443 (paragraph 2, item c), 445 (sole paragraph), 451

• 內容：
  Brazil's probation mechanism is the contrato de experiencia (experience/probationary contract), which is a subtype of fixed-term contract. 🟢

  Duration rules: 🟢

  • Maximum duration: 90 days (Article 445, sole paragraph)
  • The counting is in calendar days, not months
  • The initial term may be set shorter (e.g., 30 or 45 days) and renewed once, as long as the total does not exceed 90 days (Article 451)
  • Common patterns: 30+60, 45+45

  Aspect	Rule
  Maximum total duration	90 calendar days
  Number of renewals permitted	1 (one)
  Minimum duration	No statutory minimum
  Tiering by position type	None — same 90-day max for all positions

  • There is no reduced salary during the experience period. The worker is entitled to the full salary for the position, plus all standard benefits (FGTS, 13th salary proportional, vacation proportional, etc.). 🟢
  • The contrato de experiencia was not modified by the 2017 Labor Reform (Lei 13.467/2017). The regime remains as it was prior to the reform. 🟡

• 罰則：

  • Exceeding 90 days or renewing more than once automatically converts the contract to indefinite-term. 🟢
  • Failure to register the experience contract in the CTPS: fine of BRL 3,000 per employee. 🟢

2.4 試用期終止條件 (Probation Termination Rules)

• 法條：🟢 — CLT Articles 479, 480, 481

• 內容：

  A) Expiration without renewal (normal ending): 🟢

  • When the contrato de experiencia reaches its stated end date and the employer does not wish to continue, the contract ends naturally.
  • The worker is entitled to: salary balance, proportional 13th salary, proportional vacation + 1/3 bonus, FGTS deposits (but no 40% FGTS penalty, and no prior notice).
  • The worker may withdraw their FGTS balance upon contract expiry.

  B) Early termination by employer without cause (Article 479): 🟢

  • If the employer terminates the experience contract early without just cause, the employer must pay:
    • All amounts due for normal termination, plus
    • Indemnification equal to 50% of the remaining salary until the contract's end date
    • 40% FGTS penalty (multa rescisoria)

  C) Early termination by employee (Article 480): 🟢

  • If the employee resigns before the contract's end date, the employee must indemnify the employer for damages, capped at the same amount the employer would owe under Article 479 (50% of remaining salary).

  D) Clausula assecuratoria (Article 481): 🟢

  • If the fixed-term contract contains a clause allowing early termination by either party (clausula assecuratoria do direito reciproco de rescisao), termination follows the rules of indefinite-term contracts — meaning the 30-day prior notice requirement applies, and standard severance rules govern.

  E) Termination for just cause (justa causa): 🟢

  • Either party may terminate the experience contract for just cause at any time, per Article 482 (employer) or Article 483 (employee), without any indemnification.

• 例外：

  • Pregnant employees: Termination protection applies. The STF has established through Sumula 244, III that pregnant employees have job stability even during the experience contract period — the employer cannot terminate the contract. 🟡
  • Workers who have suffered a work accident: Job stability of 12 months after recovery also applies during experience contracts (Article 118, Lei 8.213/1991; Sumula 378, TST). 🟡
  • CIPA members (internal accident prevention committee): Also protected during the experience contract. 🟡

2.5 定期契約續約上限 (Fixed-Term Renewal Cap)

• 法條：🟢 — CLT Articles 445, 451, 452

• 內容：

  General fixed-term contracts: 🟢

  • Maximum duration: 2 years (Article 445)
  • Renewal: one renewal only (Article 451). A second renewal automatically converts the contract to indefinite-term.
  • The sum of both periods (initial + renewal) cannot exceed the 2-year maximum.

  Contrato de experiencia: 🟢

  • Maximum duration: 90 days (Article 445, sole paragraph)
  • Renewal: one renewal only (Article 451), within the 90-day cap.

  Successive contracts cooldown (Article 452): 🟢

  • A new fixed-term contract between the same parties is only considered valid if more than 6 months have elapsed since the previous fixed-term contract expired.
  • Exception: if the expiration of the previous contract depended on the execution of specialized services or the occurrence of certain facts. 🟢

  Automatic conversion: 🟢

  • If the fixed-term contract is renewed more than once, it automatically becomes indefinite-term.
  • If the employee continues working after the fixed-term contract's end date without formal renewal, the contract is deemed indefinite-term.
  • If a new fixed-term contract is signed within the 6-month cooldown period (without qualifying exception), it is deemed indefinite-term.

2.6 競業禁止與保密條款 (Non-Compete & Confidentiality)

• 法條：🟠 — No specific CLT provision
• 內容：
  • The CLT does not contain specific provisions on post-employment non-compete clauses. 🟠
  • However, Brazilian labor courts (Tribunal Superior do Trabalho — TST) have developed criteria for enforceability through case law. A non-compete clause is generally enforceable if: 🟠
    1. It is limited in time (typically up to 2 years maximum)
    2. It is limited in geographic scope
    3. It includes adequate compensation (compensacao financeira) during the restriction period
    4. It is necessary to protect legitimate business interests (trade secrets, client relationships)
  • Without financial compensation during the non-compete period, courts will typically void the clause. 🟠
  • Confidentiality clauses are more readily enforceable, as the duty of loyalty and good faith survives the employment relationship. 🟠
  • Trade secret protection is also available under the Industrial Property Law (Lei 9.279/1996, Articles 195). 🟢

3. 立法理由與實務見解 (Rationale & Practice)

• 立法背景：

  • The CLT was enacted in 1943 under the Getulio Vargas government, consolidating decades of labor legislation into a single code. Despite numerous amendments, the CLT's fundamental structure remains in place. 🟢
  • Lei 13.467/2017 (Reforma Trabalhista) was the most significant overhaul in the CLT's history, with 106 provisions affected. Key changes relevant to contracts: 🟢
    1. Introduction of the contrato de trabalho intermitente (intermittent work contract)
    2. Validation of full outsourcing (atividade-fim) — complementing Lei 13.429/2017
    3. Introduction of mutual termination by agreement (distrato — Article 484-A): worker receives 50% of notice period and 20% FGTS penalty instead of 40%
    4. Digitalization of the CTPS
    5. The experience contract regime was not changed by the reform.

• 重要判決／函釋：

  • Sumula 244, III (TST): Pregnant employees have job stability even during experience contracts and cannot be terminated. 🟡
  • Sumula 378 (TST): Workers who suffer work accidents during experience contracts are entitled to 12-month stability after recovery. 🟡
  • STF (ADPF 324 & RE 958.252): The STF confirmed the constitutionality of unrestricted outsourcing (including core business activities). 🟡
  • ADI 5.826, 5.829, 6.154 (STF): Confirmed the constitutionality of intermittent work contracts introduced by the 2017 reform. 🟡

• 實務灰色地帶：

  • Contrato de experiencia for rehired employees: If an employee was previously employed by the same employer in the same function, a new experience contract is generally considered invalid unless the 6-month cooldown under Article 452 has elapsed. Even with the cooldown, courts may scrutinize whether a new experience period is genuinely justified. 🟠
  • Intermittent work misuse: Some employers have attempted to convert regular employees to intermittent contracts to reduce costs. Courts have struck down such arrangements where the work pattern is regular and continuous. 🟠
  • PJ (Pessoa Juridica) arrangements: Despite the outsourcing reforms, the practice of hiring individuals as independent contractors (through their own companies — "pejotizacao") to avoid employment obligations remains common and heavily litigated. Courts regularly recharacterize these as employment relationships. 🟠

• 近年修法趨勢：

  • The 2017 Reforma Trabalhista remains contentious. Several provisions have been challenged in the STF. 🟡
  • The STF upheld the constitutionality of intermittent work contracts in late 2024/early 2025 after years of uncertainty. 🟡
  • Discussions about a new round of labor reform continue, but no significant legislative changes have been enacted since 2017 as of early 2026. 🔴
  • The eSocial system continues to be expanded, increasing digital compliance requirements. 🟡

4. 雇主合規重點 (Employer Compliance Hotspots)

• 🟢Register all employees in the CTPS (now digital) within 5 business days of hire. Fines: BRL 3,000 per employee (BRL 800 for micro/small enterprises).
• 🟢Contrato de experiencia cannot exceed 90 calendar days total. Renew at most once. Exceeding either limit automatically converts to indefinite-term.
• 🟢Pay full salary and benefits during the experience period — no reduced probation wages allowed.
• 🟢Observe the 6-month cooldown between successive fixed-term contracts with the same employee (Article 452).
• 🟢Do not terminate pregnant employees during the experience contract — job stability applies (Sumula 244, III, TST).
• 🟢Do not terminate employees who suffered a work accident during the experience contract — 12-month stability applies (Sumula 378, TST).
• 🟢Include a clausula assecuratoria in experience contracts if early termination flexibility is desired — this converts termination rules to indefinite-term contract standards.
• 🟢If using intermittent work contracts, ensure the call pattern is genuinely intermittent, not regular and continuous.
• 🟢For outsourced workers, observe the 18-month quarantine (cannot rehire dismissed employee as outsourced worker).
• 🟠Non-compete clauses must include financial compensation and reasonable time/geographic limits to be enforceable.

5. 與其他轄區的關聯 (Cross-References)

• 與 mexico：🔷 相似 — Both Latin American systems with strong worker protection traditions. Mexico's trial period is shorter (30 days general) but has the additional capacitacion inicial mechanism (up to 3-6 months). Brazil's contrato de experiencia is simpler (flat 90-day max). Both require full salary during probation.
• 與 vietnam：🔶 差異 — Vietnam has tiered probation by position type (6/30/60/180 days) and allows reduced salary (85% minimum). Brazil has a flat 90-day maximum with full salary required. Vietnam allows 2 fixed-term renewals; Brazil allows 1.
• 與 china：🔶 差異 — China ties probation length to contract duration (1/2/6 months) and allows reduced salary (80% minimum). Brazil's 90-day flat cap does not vary by contract duration. Both limit fixed-term renewals.
• 與 usa-federal：🔺 衝突 — US at-will employment vs Brazil's strong employment stability regime. Brazil requires just cause for dismissal (or severance payment); US generally does not. Brazil has mandatory CTPS registration; US has no equivalent work booklet.
• 與 india：🔶 差異 — India's probation is largely contractual; Brazil's is statutory (CLT). India allows longer probation periods (often 6-12 months by contract); Brazil caps at 90 days by law.
• 與 hungary：🔷 相似 — Both have statutory probation period limits (Hungary: 3 months by law, extendable to 6 months by CBA; Brazil: 90 days flat). Both require no reduced salary during probation.

6. 風險警示 (Risk Flags)

• 🔴高風險 — Pregnant employee termination during experience contract: Despite the fixed-term nature, the TST's Sumula 244, III guarantees job stability to pregnant employees even during experience contracts. Terminating a pregnant employee triggers reinstatement and back-pay liability through 5 months post-birth.

• 🔴高風險 — Experience contract exceeding 90 days: Automatic conversion to indefinite-term, meaning the employer cannot terminate without paying full severance (notice period + 40% FGTS penalty + all proportional benefits).

• 🔴高風險 — Pejotizacao (false independent contractor): Using PJ arrangements to avoid employment obligations is one of the most litigated labor issues in Brazil. Courts apply substance-over-form analysis and will recharacterize the relationship as employment with retroactive obligations (FGTS, 13th salary, vacation, INSS contributions, etc.).

• 🟡中等風險 — 6-month cooldown violation: Signing a new fixed-term contract with the same employee within 6 months of the previous one's expiry converts the contract to indefinite-term. Many employers overlook this rule.

• 🟡中等風險 — Early termination without clausula assecuratoria: Without this clause, early termination of an experience contract triggers the 50% remaining salary indemnification (Article 479). Including the clause converts to indefinite-term termination rules (30-day notice + 40% FGTS penalty), which may be more or less costly depending on timing.

• 🟡中等風險 — Intermittent work contract misuse: If the work pattern is regular and continuous, courts may recharacterize the intermittent contract as an indefinite-term employment with all attendant obligations.

7. 資料來源清單 (References)

1. 🟢CLT — Decreto-Lei No. 5.452/1943 (Planalto) — https://www.planalto.gov.br/ccivil_03/decreto-lei/del5452.htm (accessed 2026-04-10)
2. 🟢Lei 13.467/2017 (Reforma Trabalhista) — https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2017/lei/l13467.htm (accessed 2026-04-10)
3. 🟢Lei 13.429/2017 (Terceirizacao) — https://www.planalto.gov.br/ccivil_03/_ato2015-2018/2017/lei/l13429.htm (accessed 2026-04-10)
4. 🟡Guia Trabalhista — Contrato de Experiencia — https://www.guiatrabalhista.com.br/guia/contrato_experiencia.htm (accessed 2026-04-10)
5. 🟡Jusbrasil — Art. 443 CLT — https://www.jusbrasil.com.br/topicos/10714720/artigo-443-do-decreto-lei-n-5452-de-01-de-maio-de-1943 (accessed 2026-04-10)
6. 🟡TOTVS — Contrato de Experiencia Guide — https://www.totvs.com/blog/gestao-para-assinatura-de-documentos/contrato-de-experiencia/ (accessed 2026-04-10)
7. 🟡Barbieri Advogados — Labor Law in Brazil Practical Guide — https://www.barbieriadvogados.com/en-labor-law-in-brazil/ (accessed 2026-04-10)
8. 🟡Swisscam Brasil — Labor Law Brief Overview — https://swisscam.com.br/en/publicacao/doing-business-in-brazil/12-labor-law-in-brazil-brief-overview/ (accessed 2026-04-10)
9. 🟡National Law Review — Brazil Labor Reform Summary — https://natlawreview.com/article/brazil-labor-reform-what-you-need-to-know-about-law-no-134672017 (accessed 2026-04-10)
10. 🟡ICLG — Employment & Labour Laws Brazil 2025-2026 — https://iclg.com/practice-areas/employment-and-labour-laws-and-regulations/brazil (accessed 2026-04-10)

8. 待確認事項 (Open Questions)

• 🔴 — Current CTPS non-registration fine amounts (BRL 3,000 / BRL 800): verify whether these have been adjusted since the 2017 reform. Article 47 fines may have been updated by subsequent regulation.
• 🔴 — Exact STF ruling dates and case numbers for ADI 5.826/5.829/6.154 on intermittent work constitutionality — confirm the final decision dates in 2024-2025.
• 🔴 — Whether any new labor reform legislation has been proposed or enacted in 2025-2026 that modifies the experience contract regime.
• 🔴 — Specific TST precedents on non-compete clause enforceability criteria — the four-factor test described is based on prevailing case law trends but should be verified against recent TST decisions.
• 🔴 — Whether the 18-month outsourcing quarantine (Article 5-C, Lei 6.019/1974) has been subject to STF challenge or modification since 2017.