The federal government presented its Administrative Reform proposal in the second half of 2020. Understanding all the changes will give students, lawyers, and legal professionals a head start.
Therefore, below, we will quickly, easily, and completely explain all the points you need to know about the Administrative Reform.
What is the purpose of administrative reform?
In short, this proposed amendment to the Constitution for the New Public Administration, as it is called by the government, would serve to balance public accounts . The goal is to initiate a broad administrative reform, and the Proposed Amendment to the Constitution (PEC) 32/20 would be the initial step.
According to the Ministry of Economy , the reform is necessary to " modernize the State, giving greater dynamism, rationality and efficiency to its performance; bring the Brazilian public service closer to the reality of the country; and guarantee budgetary and financial conditions for the existence of the State and for the provision of quality public services ".
However, the Ministry of Economy did not disclose the fiscal impact of the Administrative Reform, stating that it still depends on complementary projects that will be presented to Congress at a later time.
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What changes in public service exams with the administrative reform?
First, the Administrative Reform maintains the competitive examination as the main means of entry into public service; however, it changes the legal ties with the State.
Here, you need to pay attention, because the Administrative Reform eliminates the Unified Legal Regime and creates distinct employment relationships, which are:
- Link of experience;
- Link by determined deadline;
- Link by indefinite term;
- Role typical of a State; is
- Position of leadership and advising.
Let's now look at Minister Paulo Guedes' full considerations on each of them:
I. Experience link
" which will provide for a period of effective experience as a stage in the competitive examination for entry into a permanent position or a typical State position , establishing a well-defined framework for a more comprehensive evaluation and decision-making regarding the admission of the employee to a position that is part of the permanent staff, depending on ranking, within the number of positions foreseen in the public examination notice, among those best evaluated at the end of the period "
II. Term bond
"which will enable the hiring of personnel for specific needs and with a specific deadline, to attend:
(a) temporary need resulting from a calamity, emergency, shutdown of essential activities, or temporary accumulation of work;
(B) activities, projects or needs of a character temporary or seasonal, with explicit indication of the duration of the contracts; and
(c) activities or procedures on demand"
III. Position with an indefinite-term contract
"for the performance of ongoing activitiesthat are not typical of the State, encompassing activities technical, administrative or specialized and which involve a larger number of people"
IV. Typical State Office
"on differentiated guarantees, prerogatives and duties, will be restricted to the servers that have as assigning the performance of activities that are inherent to the State, sensitive, and strategic. and which largely represent power extrovert of State"
V. Leadership and advisory role
"This will not only apply to current appointed positions and positions of trust....but also to other positions that justify the creation of a specific job position with strategic, managerial or technical assignments"
Furthermore, it is important to emphasize that the changes resulting from the administrative reform will only affect new public servants, that is, future public employees. Current public servants will not be affected by any changes (acquired rights).
What are the proposals for the administrative reform?
The proposals for the Administrative Reform are based on 7 (seven) main points: end of the single legal regime, deconstitutionalization of performance management and the conditions for loss of public employment and positions, greater autonomy for the President of the Republic, changes in the principles governing Public Administration, cooperation with public and private bodies and entities, accumulation of positions, and other measures that we will see in detail shortly.
End of the Unified Legal Regime
As we mentioned earlier, the Administrative Reform creates different types of employment contracts: probationary, fixed-term, indefinite-term, typical state positions, leadership positions, and advisory roles.
Deconstitutionalization of performance management and the conditions for loss of public employment and positions.
Here, the Administrative Reform stipulates that the law (and not the Constitution) will establish performance management and the loss of tenure and positions.
The impact of this is less stringent regulation of these issues, granting greater autonomy to the legislator.
There is also, during the Administrative Reform, an attempt to establish a federal supplementary law as competent to govern general rules relating to personnel management, the maximum percentage of leadership and advisory positions that can be freely appointed and dismissed, workforce organization, career progression and promotion, development and training, and the maximum duration of the workday for the purpose of accumulating paid activities.
Autonomy for the President of the Republic
The Administrative Reform establishes the possibility for the President, by means of a Decree:
"(the) eliminate positions of Minister of State, appointed positions, leadership and advisory positions and functions, whether occupied or vacant;
(B) to create, merge, transform or extinguish Ministries and agencies directly subordinate to the President of the Republic;
(C) extinguish, transform and merge entities of the autonomous and foundational public administration;
(D) transform positions Vacant positions and positions of Minister of State, commissioned and leadership and advisory positions, positions of trust and non-permanent bonuses, whether vacant or occupied, provided that it does not entail an increase in expenses and the same nature of the employment relationship is maintained;
(E) change and reorganize positions Effective public positions within the federal Executive Branch and their responsibilities, provided that this does not imply alteration or suppression of the career structure, change in remuneration, modification of entry requirements for the position or the nature of the employment relationship, restricted, for typical State positions, to the transformation of vacant positions only within the same career."(Full text of PEC 32/20(emphasis added)
The consequence of this is the expansion of the prerogatives of the Executive Branch.
Changes in the principles governing Public Administration
The Administrative Reform incorporates impartiality, transparency, innovation, accountability, unity, coordination, subsidiarity, and good public governance into the list of principles outlined in Article 37 of the Constitution.
Note that a change in principles is a rather significant alteration.
Cooperation with public and private bodies and entities.
The Administrative Reform allows the Union, the States, the Federal District, and the Municipalities to cooperate with public and private bodies and entities for the execution of public services (such as sharing physical infrastructure and using human resources).
Accumulation of positions
Here, very little changes compared to the current situation.
The Administrative Reform allows for the accumulation of positions as long as there is compatibility, except for those holding typical State positions where dedication must be exclusive (except for teaching and health-related activities).
Other measures of the administrative reform
There are also other measures proposed by the Administrative Reform, such as:
(a) to suspend , during absences and leaves, the payment of remuneration for commissioned or leadership and advisory positions, performance bonuses, bonuses, fees, indemnities or any payment that is not of a permanent nature, except in cases of absences and leaves provided for in the Constitution, absence due to temporary incapacity for work, transfer and requisition and absence of personnel serving the Brazilian Government abroad subject to adverse situations in the country where they carry out their activities; and
b) to foresee a set of safeguards that correct historical distortions, contribute to improving the image of the public sector before society, and institute fairer and more equitable policies such as:
- Vacation periods exceeding thirty days during a one-year qualifying period;
- Increase in remuneration or compensation payments with retroactive effect;
- Compulsory retirement as a form of punishment; among others"
( full text of PEC 32/20 ; emphasis added)
How is the administrative reform process progressing?
PEC 32/20 was forwarded to the Constitution, Justice and Citizenship Committee (CCJ). The text will then be submitted to a special committee, which will assess its merits, and subsequently to the Plenary, bearing in mind that approving a PEC is more difficult than a bill.
Finally, the Administrative Reform must be discussed and voted on in both Houses of Congress, in two rounds, and approved with at least three-fifths of the votes of senators and representatives.