MPV 1.108 AND FLEXIBLE BENEFITS STARTUPS

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For some time HR Techs, start-ups that aim to solve the problems of human resources departments, have been innovating in the benefits management sector, focusing on the quality of life of workers and bringing agility and practicality to companies, moving away from the old model of meal vouchers and food vouchers.

Traditional benefit companies usually work with the format of closed arrangements, that is, when they have benefit cards with their own flags. This form of payment arrangement usually brings with it two problems: one for the employee and the other for the commercial establishments.

When these benefit companies do not have a significant expression in the market, the employee is the most prejudiced, as he will be forced to use his meal or food voucher at a reduced number of establishments, often with quality inferior to that which he would like or with values higher than those normally practiced.

On the other hand, when traditional companies have a very large share of the market, who ends up in a situation of vulnerability is the owner of the business that accepts that flag, because these companies, taking advantage of the large number of users of their cards, end up charging much higher fees for the use of their flags.

Besides breaking with this model by operating through existing and widely used flagships in the market, benefits startups usually bring flexibility by allowing companies and employees to choose the benefits that best suit their reality.

However, the very recent enactment of Provisional Measure (MPV) 1,108/2022 raised doubts about the future of flexible benefits and the use of the Workers' Meal Program - PAT tax benefit by companies.

This doubt ended up being generated, mainly, by a mistaken analysis of the protections for the worker and the prohibitions of illegal practices by the companies foreseen

in the MPV, as well as the fear of a fine of between R$ 5,000.00 and R$ 50,000.00 for the benefit operator for cases of inadequate execution or distortion of the purpose of the meal allowance.

It should be remembered that, according to paragraph 3 of article 62 of the Federal Constitution, a provisional measure loses its effectiveness if it is not converted into law by the National Congress within 60 days, extendable for a further 60 days.

However, even if converted into law, MPV 1,108 will not put an end to the evolution brought about by HR Techs, nor will it put an end to the possibility of companies providing flexible benefits or taking advantage of PAT tax benefits.

In fact, the MPV aims to optimize the payment of the food allowance provided for in the Consolidation of Labor Laws - CLT and improve the implementation of PAT.

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Exclusive meal allowance to pay for meals

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PAT was created in 1976, by Law 6,321, with the objective of improving the nutritional conditions of workers, allowing companies to deduct twice the expenses incurred with food from taxable income, so as to encourage companies to implement adequate food services for their employees.

In the reform of the CLT in 2017, the concept of benefits was expanded in order to bring more assistance to workers' needs, thus, through the development of new technologies, PAT started to work much more tied to payment systems, arrangements and institutions, enabling the worker to make purchases not related to food and the purpose of the Programme and the tax benefit created to promote it.

For this reason, the MPV changed article 1 of Law 6321, including paragraph 3, to require that the amounts paid as food allowance must be used exclusively to purchase meals or foodstuffs:

§ 3. The expenses intended for the worker's feeding programs shall cover exclusively the payment of meals in restaurants and similar establishments and the acquisition of foodstuffs in commercial establishments.

However, this should not generate a concern for business owners with their flexible benefits suppliers as long as they have tools to prove the destination and guarantee the consumption of the food allowance resources in the establishments linked to this economic activity.

The only necessity to prove the destination of the resources of the food aid and the use of the PAT benefits by the entrepreneurs is that it is required that the companies hired to provide the benefits, the facilitators, have technological means to identify, categorize and restrict the payments to commercial establishments according to the type of benefit provided to the employee, restricting the use of food credits only for payment in restaurants and similar.

In Alymente's backoffice platform, it is possible to perform balance division and block the amounts stipulated by the company or the minimum amounts stipulated by collective agreement or union convention, so that these are used only for meal and food purposes in accordance with the legislation in force.

This is because the MPV does not prohibit the contracting of more than one benefit with the same facilitator, it only states that the food benefit must be used mandatorily with food.

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Ban on rebate

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This prohibition is not new in the MPV, as it was already foreseen in Decree 10,854 of 2021, which regulated PAT.

This very common practice ended up harming the worker, since the concession of negative rates or discounts by the facilitators was allowed to companies that received tax exemption to implement feeding programs.

This practice distorted PAT by benefiting companies twice. To gain market, the facilitators granted negative rates to companies, to close new contracts of food benefit. On the other hand, to recompose this discount, the facilitators demanded high rates from the credential commercial establishments.

In this scenario, workers, who should be the main beneficiaries of PAT, had their importance in the negotiations relegated to the second plan, while legal entities benefited doubly, with the income tax exemption and with the discount rates granted by the facilitators.

The MPV reinforced the prohibition against this practice, prohibiting the employer from receiving any type of discount, rebates, payment terms or benefits when hiring a legal entity that facilitates, including paragraph 4 in article 1 of Law 6321:

§ 4 Beneficiary legal entities may not demand or receive:

1. - any type of discount or imposition of discounts on the contracted value;
2. - transfer or payment deadlines that deprive the prepaid nature of the amounts to be made available to the workers; or
3. - other direct or indirect amounts and benefits of any nature not directly related to the promotion of health and food safety of the worker, within the scope of the contract signed with companies that issue payment instruments for food allowance.

The mistaken reading of item III ended up creating doubts about the provision of flexible benefits by employers, based on the erroneous assumption that no other benefits not related to the worker's health and food safety could be contracted.

In fact, the clause prohibits the employer from "demanding" or "receiving" benefits "not related to the promotion of workers' health and food safety" from facilitating companies, so that their decision is based on what is best for their employees and not for their company.

Therefore, there is no prohibition for the employer to contract more benefits for its employees, even if they are not linked to health and food safety.

It is worth remembering that the MPV's intention, on this point, is to restrain rebate, which consists in the employer receiving or demanding benefits for hiring a facilitating company.

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Conclusion

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As exposed, the MPV 1,108 aims to optimize the payment of the meal allowance provided in the CLT and improve the execution of PAT, and there is no prohibition for the contracting of other benefits cumulatively with the meal allowance.

Even because this new measure does not deal with any other benefits, only with the meal allowance provided for in art. 467, §2 of the CLT.

So that the contracting companies may benefit from PAT, as well as prove the correct destination of the food aid and other benefits provided by law and collective conventions, it is enough that the facilitating company has technological means to identify, categorize and restrict the payments to commercial establishments according to the type of benefit provided to the employee, restricting the use of credits according to its purpose.

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