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Comparing Employment Law In USA And Brazil

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Question:

Discuss about the Comparing Employment Law In USA And Brazil.

 

Answer:

Topic

Brazil

Australia

Parliamentary system

 

 

 

 

 

There is applicability of Federal Presidential Representative democratic Republic in which the President is deemed as the head of government, head of state and also of the multi-party system. The Federal Government has control over central government and also over the executive, judiciary and legislative (Martínez-Lara, 2016).

The Constitution of Australia was established in 1901 through which a federal system of government was brought forward. This system has the powers being distributed between Commonwealth government and the state/ territory governments. The legislative, judiciary and executive powers are divided between different categories based on the Australian Constitution (Ratnapala & Crowe, 2012).

Court system

 

 

The highest Brazilian judiciary is the Supreme Federal Court (Supremo Tribunal Federal). The jurisdiction division and structure, along with the ramifications of judiciary of nation is defined through the Constitution of the nation. There are ordinary courts, i.e. Justiça comum specialized courts Justiça especializada. The former are divided between judiciaries of state and federal, whilst the latter is kept entirely by Federal government, and covers electoral, labour and military courts (Maurer & Barrat, 2016).

The Australian judiciary consists of federal courts and the courts of Australian states and territories. The highest court of the nation is High Court of Australia and this is the ultimate court for both the state and federal laws. Different court systems include Federal Court of Australia, Family Court of Australia, Federal Circuit Court of Australia, and Family Court (Campbell, Lee & Campbell, 2013).

Contract law

The key requirement in this context is that any contract, under the laws of the nation, which involves the government of the nation, or its bodies, has to be written and signed in the Portuguese language. The validity of this is for agreements, certifications, bids and permissions signed by individuals or companies. It is not important for a private contract to be written in the local language. This is true for the agreements in between parties, documentation related to hiring for specific services, and internal documents signed for hiring employees. Under the Brazilian Civil Code, it is provided that the papers, documents and titles written in foreign language can be registered in their original form without being translated (Deffenti & Barral, 2011). This is common in order to preserve the original version of such paper, document or title. There are cases where all of the documents need to have an approved copy which is written in Portuguese for producing legal effects in the nation.

The contract law in Australia is majorly influenced by the English laws. As a result of this, the common law dictates the contract law in the nation. There is no statutory code like Brazil in Australia regulating the contract law aspects. There is no restriction on language of the contracts in the nation as well (McKendrick, 2014).

Agency

In Brazil, the labour relations are recognized under the law as being the representative body, before the authorities, of some class of workers. The labour unions have the exclusive right of concluding the collective decisions which relate to the workers; elect the representatives of working class; collect financial contributions of the ones who are represented; and collaborating with government for solving problems which relate to working class. There is a need for the labour unions to give juridical aid to the workers who do not have the finances to afford an attorney and also can approve the labour terminations of the ones in same company for more than a year. In absence of this approval, there are chances of rescission to be challenged legally and for the severance not being paid (Utsumi, 2014).

As is the case with contract law, the laws of agency, as are commonly applied under the English laws, apply in the nation as well. So, for the acts done by the subordinates, the superiors are liable (Latimer, 2012).

Employment law

 

 

The employment relationships in Brazil are regulated through the written employment contracts. These are governed by the Brazilian Social Security Law, the Federal Constitution, Brazilian Government Severance Indemnity Fund Law (FGTS), and the rules and special legislations put forward by the Ministry of Labour and Employment and the collective bargaining agreements. Even though there is acceptability of oral or tacit contracts, it is often recommended to go for a written contract and that too in Portuguese. There are also implied terms included in the written contracts, which per se are not in written form, but are implied based on the written terms. The collective agreements which are undertaken with the trade unions become binding in an automatic manner on all of the employment contracts. The validity of these instruments is for two years and these are negotiated in between the union which represent the employer and the ones which represent the employees (Redi, Greiner & Bodo, 2016).

The employment law of Australia is amongst the best features of the nation. The Fair Work Act, 2009 (Cth) is a comprehensive legislation, which ensures that the basic rights of the employees are safeguarded. There are anti-discriminatory legislations applicable at federal and state levels, which not only ensure that no type of discrimination takes place at the workplace, but also makes certain that equal opportunity is provided to all, irrespective of their gender, age, race and other parameters, which can be discriminated upon (Stewart , 2013). 

Tort

 

 

Article 927 of the Civil Code of 2002 is the key source of law in the nation which applies on the legal entities and on the individuals. Under this article, it is provided, that any entity which causes damage to another by means of tort, would be under the obligation of repairing such damage. Through this code, strict liability is imposed for undertaking any tort (Johnson, 2005).

The situation of tort law is same as in the case of contract law and agency law. The laws are drawn from English laws, and even the English precedents like Donoghue v Stevenson [1932] UKHL 100 form the basis of tort law in the nation (Latimer, 2012).

Patents

The Federal Law No. 9279 of May 14, 1996 (IP Law) regulates the patents in Brazil (Advogados, 2013). Only by registering with National Institute of Industrial Property can the patent rights be acquired in the nation. The other name for this institution is Instituto Nacional de Propriedade Industrial, i.e. INPI. The applications of patents are analysed on file to file basis despite their invention or creation date. There are different requirements for different categorized patents, for instance in terms of pharmaceutical procedures and products, economic implementation of technology transfer contracts, plant varieties, and genetic resources, amongst the others (Export, 2017).

The main legislation which offers protections to patents in the nation is the Patents Act 1990 (Cth). IP Australia, which is a commonwealth government agency, administers patents in the nation. Australia, being a member of WIPO, complies with TRIPS (Davison, Lindsay & Monotti, 2012).

Copyright

Federal Law No. 9610 of February 19, 1998, also known as the copyright law is regulated by the copyrights, which include rights of authors and the neighbouring rights. There is no requirement of copyright registration for having protection, and yet it is still helpful in cases where a dispute is raised. This is because the registration certificate permits the allowance of authorship presumption where there is no evidence to show the contrary. As is the case with patents, different aspects of copyright are regulated by different guidelines. For instance, different laws regulate the computer programs or computer software, and are differentiated based on minute details (Export, 2017).

The Australian Copyright Act, 1968 covers the scope of copyrights in the nation and is the national law in context of copyrights across the nation. The base of this act is stemmed from the authority given under section 51(xviii) of the Australian Constitution (Knight, 2013). An interesting point here again is that the copyright laws of the nation follow the British copyright laws. So, not only the common law of the nation is influenced by the British laws, the statutory laws of the nation also get influenced by the British laws.

Trademarks

The Federal Law No. 9279 of May 14, 1996 regulate the trademarks in the nation. As per this law, the trademarks can be acquired in the nation only by registering with INPI. Again, the applications of trademark are analysed on file to file basis and only priority claims are given preference, for instance the Paris convention priority. The IP law regulates the geographical indications. Again, the registration is not obligatory and yet it is recommended for the foreign geographical indications. This is because such registration provides the geographical indication owners with the required documents for such cases where a dispute is raised in the nation (Export, 2017).

The trademark law of the nation is use base rights based on common law and also on the Trade Marks Act 1995 (Cth). This is again administered by IP Australia. It is always suggested to go for registration as against use based rights in trademarks as it brings advantages of nationwide rights and constructive notice (Burrell & Handler, 2010).

 

 

References

Advogados, D.S. (2013). Prosecution of pharmaceutical patents in Brazil: tensions between the Brazilian Patent Office and ANVISA. Retrieved from: https://www.lexology.com/library/detail.aspx?g=11c9730b-08b9-447e-9d87-f1c82b52d25d

Burrell, R., & Handler, M. (2010). Australian trade mark law. Oxford: Oxford University Press.

Campbell, E., Lee, H. P., & Campbell, E. M. (2013). The Australian Judiciary. Victoria: Cambridge University Press.

Davison, M., Lindsay, D., & Monotti, A. (2012). Introduction. Monash UL Rev., 38, 1.

Deffenti, F., & Barral, W. O. (Eds.). (2011). Introduction to Brazilian law. Netherlands: Kluwer law international.

Export. (2017). Brazil - Protecting Intellectual Property. Retrieved from: https://www.export.gov/article?id=Brazil-Protecting-Intellectual-Property

Johnson, A. (2005). Brazil Tax, Law and Business Briefing: 2005. Concord, MA: World Trade Executive Inc. 

Knight, W.P. (2013). Copyright: The Laws of Australia. Sydney: Thomson Reuters Australia, Limited.

Latimer, P. (2012). Australian Business Law 2012. 31st ed. Sydney, NSW: CCH Australia Limited.

Martínez-Lara, J. (2016). Building democracy in Brazil: the politics of constitutional change, 1985-95. New York: Springer.

Maurer, A. D., & Barrat, J. (2016). E-Voting case law: a comparative analysis. Oxon: Routledge.

McKendrick, E. (2014). Contract law: text, cases, and materials. Oxford: Oxford University Press (UK).

Ratnapala, S., & Crowe, J. (2012). Australian Constitutional Law: Foundations and Theory (pp. 1-466). Oxford: Oxford University Press.

Redi, M.F.D.M., Greiner, L.C., & Bodo, I.M. (2016). Employment and employee benefits in Brazil: overview. Retrieved from: https://uk.practicallaw.thomsonreuters.com/1-503-5032?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1

Stewart, A. (2013). Stewart's guide to employment law (Vol. 3). Sydney: Federation Press.

Utsumi, I. (2014). Comparing Employment Law In USA and Brazil. Retrieved from: https://thebrazilbusiness.com/article/comparing-employment-law-in-usa-and-brazil

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