SIT changes “Programa de Alimentação do Trabalhador” inspection standard

EXPERT OPINION

SIT changes "Programa de Alimentação do Trabalhador" inspection standard

Labor Inspection Department (Secretaria de Inspeção do Trabalho - “SIT”) published Normative Instruction No. 135 in the Official Gazette, of Sep-01-2017, setting new procedures for disclosing and enforcing Workers Food Program legislation (Programa de Alimentação do Trabalhador - “PAT”).

We will address the main issues on disclosing and enforcement of PAT legislation procedures, and we will show how the inspection planning and performance shall be.

Action planning

The Labor Regional Superintendents (SRT) inspection chiefs should include disclosing and enforcement activities in PAT legislation in their planning. Such planning should include registered and unregistered companies in the program, prioritizing beneficiary medium and large companies. Inspection activities may be organized into specific project or executed in other projects scenario, since SIT guidelines planning are met.

Actions enforcement

In beneficiary companies’ fiscal actions, the Labor Tax Inspector (Auditor-Fiscal do Trabalho - “AFT”) should at least verify if:

a) there is compliance with all employees in priority salary range, corresponding to income equivalent to up to 5 minimum wages, whenever a higher income worker is included in the program;

b) the benefit granted employees in priority salary range is equal to or higher than that given to those workers with higher-income;

c) the amount charged to all workers assisted at the program does not exceed 20% from the direct and exclusive cost of granted benefits, considering the assessment period;

d) the employer refrains from using the PAT in order to reward or punish workers;

e) the parametric indicators of caloric value and nutritional composition of food available to workers are observed;

f) there is a legally qualified nutrition professional, properly registered in PAT as technical responsible for their deployment, according to the adopted modality;

g) the collective food service supplier or provider hired by the employer is duly registered in the program, according to the adopted mode.

The AFT should consolidate the compliance of listed items information through electronic PAT system standard form, regardless if irregularities are found.

Food service suppliers companies

In the case of supervision to suppliers companies of collective alimentation, the AFT should, at least, check if:

a) parametric caloric value indicators and nutritional composition food available to workers are observed;

b) there is a legally qualified nutritionist properly registered in the PAT as technical responsible for the deployment and bounded to the establishment registration.

Collective food services providers

In case of inspection to collective food services providers, the AFT should check, at least if the company:

a) checks in loco information provided by accredited establishments and keep their records updated in their possession.

b) accredits commercial establishments surrounding recipients contractors workplaces , as the contracted mode;

c) ensures that the legitimacy of documents for meals or foodstuffs purchase are regularly accepted by accredited establishments, according to the purpose expressed in the document;

d) disqualifies establishments which do not meet the PAT sanitary and nutritional requirements or contribute to its distortion by the legitimate documents misuse or other irregularities;

e)there is a legally qualified nutritionist properly registered in the PAT as technical responsible for the deployment and bounded to the company’s registration;

f) fulfills the obligations provided for in the caput, § 1, 2, 5 and 7, of Article 17, from SIT Ordinance 03/2002 related to legitimacy of documents it manages.

Indirect inspection to assess layoff evidences between registrations

Indirect inspection claims for cases of layoff or inactivation or cancellation of registration of participants registered at PAT electronic system should be performed when generating non-compliance with evidence of the following obligations:

a) legally qualified nutritionist properly registered in the PAT as technical responsible for its deployment; or

b) contracted collective food service supplier or provider by the beneficiary duly registered in the program.

Nonfulfillment of obligations consequences

Non-compliance with obligations contained in the normative instruction, or the existence of other irregularities contrary to the provisions of PAT legislation and SIT Ordinance 3/2002 characterize the improper execution of the program with consequent loss of tax incentive and application possibility of other penalties.

Notwithstanding the violation notice or, as appropriate, other existing provisions on dual visits and special inspection procedure, the AFT may specify a term for correction of these irregularities, provided there is no recurrence and do not make impossible, at first, the healthy food offering to employees, according to the program rules:

a) Failure to present the documentation related to spending on the program or to its tax incentives;

b) incorrect or outdated registration information, provided they have not been kept with fraudulent purpose and do not commit the above obligations;

c) failure of additional bonds in § 9 and 10 of Article 5 from SIT Ordinance 3/2002, since they do not interfere with the nutritional composition and to food mandatory parametric indicators for workers provided for in § 3 of Article 5 in that Ordinance;

d) non-compliance with food and nutrition education actions requirements, as provided for in § 4 from Article 5 and Article 7 from SIT Ordinance 3/2002;

e) noncompliance by the provider, the obligations under items I and VI Article 6 from SIT Instruction 135/2017, as well as sections III and IV in that article, provided that there is no evidence that the company had prior knowledge of the facts.

Important: The deadline to correct the registration information may not exceed 30 days.

Administrative procedure to cancel subscription or registration

In case of finding irregularities in PAT deployment or noncompliance with the settlement deadlines, the AFT should plough detailed report, including the subscription or registration cancellation in the program.

The company or provider irregularities assessment may be alone or co-responsibility with the recipient contractor, but in any case, the cancellation of its registration in the PAT in a separate report should also be proposed.

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The concerned company has within 10 days from receipt of notification to file a defense and the holder of SIT may appeal the decision where penalty applies within 10 days.

Subscription or registration cancellation effects

The AFT intended to survey Fund for Guaranteed Time of Service should consider the period from the 1st initial irregularity term and their own fiscal action date, subsequent to subscription cancellation, subject to the limitation term of labor legislation.

After debt survey, the process should be sent to the Department of Occupational Health and Safety (Departamento de Segurança e Saúde no Trabalho - “DSST”) to proof the actions and filing subscription or registration cancellation process.

In the hypothesis of a new request for subscription or registration that has been canceled, the head of SRT health and safety inspection should require evidences of irregularities settlement determining the cancellation decision, which should produce a new administrative process.

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