From salaried professor to stipend-based professor: the precarization of labor relations in the Open University of Brazil (UAB)Abstract
This article examines the legal nature of teaching labor within the Open University of Brazil (Universidade Aberta do Brasil - UAB), specifically focusing on the roles of Supervising Professors and Tutors. Despite the expansion of public distance education, a significant gap remains in understanding how recent administrative changes have affected the labor rights of these professionals. By analyzing the Brazilian Consolidation of Labor Laws (Consolidação das Leis do Trabalho - CLT) alongside specific regulations - such as Decree 5.800/2006 and Administrative Ruling 102/2019 - this study investigates whether these teaching activities meet the legal criteria for a formal employment relationship. The findings reveal that successive changes in selection and contracting norms have fundamentally altered the legal status of teaching work. While official regulations deny an employment bond, the daily professional dynamics - the reality of the contract - clearly exhibit the legal hallmarks of employment. Consequently, the current system violates the principle of “Primacy of Reality over Form”. This study concludes that the transition from salaried remuneration to stipend-based compensation has weakened labor protections, institutionalizing the precarization of teaching labor within the Brazilian state.
Keywords:
Distance education - Open University of Brazil (UAB) - Teaching labor - Employment contract - Precarization.
Resumo
O objetivo deste artigo é analisar a natureza jurídica da prestação de trabalho pelo Professor Formador e pelo Tutor no âmbito da Universidade Aberta do Brasil (UAB). O artigo busca averiguar se as características jurídicas específicas que correspondem ao contrato de emprego se verificam nessa modalidade de trabalho docente para, então, identificar a possibilidade de essa atividade se caracterizar ou não como um emprego. Para analisar esse aspecto, além da Consolidação das Leis do Trabalho (CLT), a pesquisa valeu-se da normatização brasileira - leis, portarias e decretos - mais precisamente do Decreto 5.800 de 2006, da Lei 11.273 de 2006 e das Portarias 183 de 2016 e 102 de 2019. Conclui-se que as alterações, providas ao longo do tempo em normas e atos administrativos que regulam o processo seletivo para docentes atuarem na UAB, contribuíram para alterar a natureza jurídica do trabalho docente. Elas interferiram para que a dinâmica cotidiana da prestação de trabalho, ou seja, o contrato realidade, configurasse as características jurídicas que correspondem ao vínculo empregatício, embora não admitam essa possibilidade. Dessa forma, contrariam o princípio da Primazia da Realidade sobre a Forma. A análise permite dizer que essa circunstância tem proporcionado, às pessoas que exercem a docência no âmbito do Estado, um vínculo de trabalho cada vez mais fragilizado, pois estão progressivamente perdendo seus direitos trabalhistas e sociais, ao se submeterem a receber uma bolsa e não uma remuneração. Essa evidência ratifica o processo de precarização que historicamente têm vivenciado aquelas e aqueles que exercem o trabalho docente.
Palavras-chave:
Educação a distância - Universidade Aberta do Brasil - Trabalho docente - Contrato de emprego - Precarização
Introduction
In an extraordinary edition of the Official Gazette of the Union, the Ministry of Education (Ministério da Educação - MEC) suspended, until March 10, 2025, the creation of new undergraduate programs, new student vacancies, and new Distance Education (DE) learning centers in Brazil through Administrative Ruling No. 528 of the Ministry of Cities (Brasil, 2024). Public authorities made this decision because the current regulatory framework for distance education needs revision. The goal is to ensure both the sustainability and the quality of undergraduate programs. For this purpose, the Lula administration announced its intention to promote dialogue among different stakeholders, on the basis of which a policy document was expected to be produced by December 31, 2024. At the time of writing this article, however, this document had not yet been made public.
Since distance education was regulated as part of Brazil’s educational system in 2006, research on its critical aspects has grown steadily. Critics have focused on several key issues. These include teaching labor by Supervising Professors and Tutors (Mill; Fidalgo, 2007; Lacé, 2014; Oliveira, 2014), the legal nature of online teaching (Barros, 2007; Scottini, 2012), teacher training (Arruda, 2018), instructional materials (Mercado; Freitas, 2013), assessment methods (Ribeiro, 2013), excessive privatization of higher education via distance learning (Barros; Araujo, 2018), and labor precarization in the Open University of Brazil (UAB) - a public policy promoting distance education nationwide (Pereira, 2010; Veloso; Mill, 2018).
Within the UAB system, teaching roles are formally divided into three main categories as defined by CAPES Administrative Ruling No. 183/2016: Content Professors (Professores Conteudistas), who are primarily responsible for developing instructional materials; Supervising Professors (Professores Formadores), who handle pedagogical coordination, teaching activities, and teacher training methodologies; and Tutors2 (Tutor or Professor Tutor), who provide direct student mediation and support (despite performing core teaching functions, they are not formally designated as “professors” in the regulations). These categories are subdivided into levels based on experience and qualifications (see Table 2 and Appendix for detailed definitions).
In response to these concerns, and building on the analyses conducted by Barros (2007) and Scottini (2012), among others, this article seeks to discuss the legal nature of the work performed by Supervising Professors and Tutors within the UAB. This analysis draws on Brazilian legislation, specifically Decree No. 5,800 of 2006, Law No. 11,273 of 2006, and Administrative Rulings No. 183 of 2016 and No. 102 of 2019 issued by the Ministry of Education - as well as the Consolidation of Labor Laws (CLT), in order to identify whether the legal elements that define an employment contract are present in this modality of teaching labor.
This discussion is especially relevant to education studies, as it reveals the precarization of teaching work in distance education - not in the private sector, but within public universities. It addresses critical issues that affect teachers’ quality of life and well- being, such as low hourly rates, the absence of labor and social rights, and temporary, part-time contracts paid as stipends rather than salaries.
The article therefore seeks to provide teachers with legal insights to better protect their rights, while situating these issues within a wider context to stimulate informed debate on the regulatory framework recently promised by the Lula government. In doing so, the article highlights the need for adequate regulation of teaching service provision within the scope of the Open University of Brazil.
Academic Teaching Labor in the Open University of Brazil (UAB): Evidence of Precarization
In order to understand the working conditions of Supervising Professors and Tutors in distance education, it is first necessary to revisit some recurrent definitions of teaching labor. Such conceptual precision is essential, as it helps to illuminate the complexity of how the labor process is organized within educational institutions, whether in person or online. Teaching work is typically equated solely with face-to-face classroom activities carried out by a single teacher. However, according to Oliveira (2010), it may be carried out by “teachers, educators, monitors, interns, principals, coordinators, supervisors, counselors, attendants, assistants, among others.” Moreover, for the author, teaching labor “is not limited to the classroom or to the formal teaching process, as it encompasses care, attention, and other activities inherent to education” (Oliveira, 2010).
An analysis of teaching labor throughout the history of schooling reveals that it has been shaped by the needs of different stages of capitalism and by technological developments, as demonstrated by Arroyo (1985). When examining the organization of schooling from the late eighteenth century through the nineteenth century, the author shows that teaching labor was carried out by the schoolmaster - a single individual, generally male, who exercised autonomy over his own labor, as he largely controlled the time and space of the teaching-learning process. Over time, the school model evolved, and the nature of teaching labor initially performed by the schoolmaster came to resemble that of an educator. By the twentieth century, teachers experienced a form of labor organization increasingly similar to that of other workers (Arroyo, 1985).
In the twenty-first century, a new phase of capitalism - accompanied by advanced information and communication technologies - has led to increasingly diverse forms of school organization. The emergence of distance education has introduced the online teacher as yet another model of teaching labor. In this model, tasks once handled by a single teacher are now divided among several professionals. As a result, the labor process becomes far more fragmented and demands greater collective and cooperative organization (Mill, 2002, 2006). This form of organizing teaching labor has been referred to as distributed teaching model (Mill, 2002) or as collective worker or collective teacher (Belloni, 2003), although these terms entail subtle conceptual differences.3
As a result, teachers have come to be designated by different titles - often accompanied by qualifiers - such as Content Professor, Supervising Professor, On-site Tutor, and Online Tutor. In other words, individuals who jointly perform teaching functions differ in terms of social recognition as teachers, in the nature of their assigned tasks, and, above all, in their use of technology to carry out these tasks. For this reason, Mill and Fidalgo (2007) argue that only the Online Tutor may be classified as a teleworker.
Unlike the Supervising Professor and the Content Professor, the Tutor is not formally designated as a teacher. Nevertheless, Tutors play an active role in the teaching-learning process within the UAB, as they are typically responsible for maintaining direct contact with students, whether in face-to-face or distance modalities. In order to perform this role, Tutors require theoretical knowledge and, therefore, are expected to possess formal education in their area of practice. In line with several authors (Costa; Duran, 2012; Mill, 2006; Veloso, 2018), we argue that the Tutor is indeed a teacher, whether operating in on-site or distance education. The loss of the title “teacher” and the lack of recognition of their work represent yet another strategy for devaluing teaching labor.
The core purpose of teaching labor in distance education - the teaching-learning relationship - remains unchanged. However, its organization and control reveal a temporal paradox. In particular, distance education teaching combines features of both Taylorist- Fordist and Toyotist models at the same time. That is, the activity combines, to varying degrees, features of capitalist production models associated with different historical temporalities. On one hand, teaching labor grows more fragmented, repetitive, time- constrained, rhythmically synchronized, and devalued - features that echo Taylor-Fordist principles dominant in the early twentieth century. On the other hand, it also incorporates Post-Fordist elements (Mill, 2006; Rezende; Marinho, 2017).
Mill, Santiago, and Viana (2008) identified key challenges in distance education teaching, including excessive workloads, high student-to-teacher ratios, low hourly pay, temporary part-time arrangements compensated via stipends, and flexible - but often boundary-less - workspaces and schedules. As a result, teaching can occur anytime and anywhere - even at home.
These conditions reflect a new division of teaching labor that, in turn, exposes professionals to fresh forms of devaluation of their training and professional role. In formal education, this phenomenon resembles the degradation of labor and the erosion of social rights experienced by workers across diverse sectors, particularly since the 1990s, and which have been analyzed through the lens of precarization (Alves, 2013; Antunes, 2000; Cingolani, 2014).
According to Leite (2011, p. 31):
[...] while precarization is a relational process that can only be understood within a specific historical period, [...] it conveys the idea of deterioration or degeneration - that is, the loss of labor-related rights and previously achieved gains. The concept of precariousness, by contrast, does not necessarily imply deterioration or loss. A given type of work may be precarious while still exhibiting more favorable social indicators than it did in earlier periods, a situation that tends to be more common in less developed countries (author’s emphasis).
In this sense, precarization can be understood as one of the terms used to describe different forms of devaluation inherent in capitalist labor, marked by the progressive loss of value attributed to workers and to the physical and mental labor they perform. As Marx (1983) explained, such devaluation occurs because the capitalist, as the owner of the means of production - including technological apparatuses - secures profit through the exploitation of others’ labor, a condition inherent to and necessary for the survival of capitalism. Precarization has been analyzed from multiple perspectives, including working conditions, the loss of labor and social rights, workers’ health, and the impacts on private life (Alves, 2007, 2013; Antunes, 2000; Cingolani, 2014).
Based on the evidence presented by Mill, Santiago, and Viana (2008), Barros (2007) undertook a legal analysis of online teaching labor with the aim of providing a foundation for the formulation of demands and specific regulations for distance education, particularly in the private sector. Although this was not the primary focus of her analysis, the author emphasized the need to clarify the criteria governing employment contracts, warning that “the legal terms [...] employed must be more carefully examined” (Barros, 2007, p. 3272).
Similarly, with the aim of examining legal issues related to working conditions in distance education, Scottini (2012, p. 91) highlights the need to identify the content of employment contracts and their implications for teachers. The type of employment arrangement described above - compensation through stipend-based compensations rather than salaries - has emerged as a key indicator of the precarization of teaching labor in distance education, an issue that will be examined specifically in relation to the UAB in the following sections.
Legal Norms and Administrative Acts Governing the Selection and Teaching Activities within the Open University of Brazil (UAB)
Various legal instruments have been enacted to regulate the Open University of Brazil (UAB). In addition to Law No. 11,273 of 2006, other administrative acts - such as decrees and Administrative Rulings - have also been identified. Table 1 provides a clear overview of the relevant legislation.
Under the norms and administrative acts governing the UAB, Public Institutions of Higher Education (Instituições Públicas de Ensino Superior - IPES) hold several key responsibilities. These include selecting teaching staff for their institutional context, as well as monitoring, supervising, and evaluating their activities. These responsibilities, together with the procedures established in public calls for the selection of teaching staff working within the UAB, are regulated by CAPES Administrative Ruling No. 183 of 2016. This Administrative Ruling establishes general guidelines for the granting and payment of stipend-based compensations to participants involved in the preparation and implementation of undergraduate and continuing education courses and programs within the UAB System.
To understand the legal regulation of teaching labor within the UAB, it is necessary to examine the provisions set forth in items II and V of Article 4 of Administrative Ruling No. 183 of 2016, as well as subsequent legislation that has affected it (such as Administrative Ruling No. 15 of 2017). These provisions are particularly relevant because they establish criteria that distinguish the work performed by UAB teaching staff, classifying them into three main categories: Supervising Professor (Levels I and II), Tutor, and Content Professor (Levels I and II). The criteria required for the selection of these three categories, the activities to be performed, and the amounts of the stipend-based compensations granted are presented in Table 2.
Table 2 shows that teaching labor in the UAB is divided and hierarchized. This occurs across several dimensions: professional titles, stipend amounts, assigned activities, required teaching experience, and educational qualifications. This finding resonates with Belloni’s (2003) argument that distance education entails a new division of teaching labor. According to the author, this configuration reflects “the fragmentation of the teaching function, which in face-to-face education is performed by a single individual” (Belloni, 2003, p. 89).
Regarding stipend-based compensation amounts, in 2006 three payment tiers were identified, ranked from highest to lowest as follows: 1,300.00 BRL (Supervising Professor I and Content Professor I), 1,100.00 BRL (Supervising Professor II and Content Professor II), and 765.00 BRL (Tutor). In 2006, the minimum wage stood at 350.00 BRL. Against this benchmark, the highest tier (1,300.00 BRL) equaled nearly four minimum wages. The intermediate tier amounted to about three, while the Tutor’s stipend came to roughly two. In February 2023, the value of teacher education stipend-based compensations was adjusted for the first time, as reported on the CAPES and Federal Government websites (CAPES, 2023). According to these sources, the increase amounted to 75%. It should be noted, however, that in 2023 the minimum wage was 1,302.00 BRL. When compared with the updated stipend-based compensation amounts across the three tiers, a significant wage lag becomes evident. Supervising Professors I and Content Professors I began to receive 1,850.00 BRL - only 548.00 BRL above the minimum wage. At the other end of the scale, the Tutor’s stipend-based compensation in 2023 did not even reach the level of a single minimum wage.
Thus, although Article 58-A of the Consolidation of Labor Laws (CLT) and its provisions allow for part-time employment and proportional remuneration - including situations in which the employee’s pay corresponds to the minimum wage - it is important to question why the adjustment of UAB stipend-based compensation payments has failed to keep pace over the years, not even tracking increases in the minimum wage.
Elements Constituting an Employment Relationship in Brazil
Within the field of Labor Law, the employment contract4 is one of several forms of work contracts (such as self-employed, casual, volunteer, occasional, among other designations). There are five specific legal characteristics which, when present simultaneously in the concrete reality of work performance, indicate the existence of an employment relationship, regardless of the formal classification attributed to the contract. These characteristics are: natural person, personal service, non-occasionality, remuneration, and subordination (Scottini, 2012).
First, the worker must be a natural person. Under an employment contract, the worker - that is, the service provider - must necessarily be an individual, as expressly established in Article 3 of the Consolidation of Labor Laws (CLT) (Brasil, 1943). It is important to clarify that service provision contracts between legal entities are legally permissible; however, such arrangements do not give rise to an employment relationship or its legal effects, as they constitute civil-law contracts governed by the Brazilian Civil Code.
The second characteristic concerns personal service, that is, the “[...] personal rendering of services [...]” (Brasil, 1943). In this sense, the employment relationship is inherently personal in nature, meaning that the employee is selected for the position due to specific attributes and qualifications that meet the employer’s interests. Consequently, the employee is personally bound to the contract and may not freely substitute another person to perform their duties during the course of the contractual relationship or the provision of services, under any circumstances, without the employer’s knowledge and consent.
Non-occasionality refers to work that is performed on a recurring basis, even if continuity is not uninterrupted. Also referred to as habituality, non-occasionality is characterized by the expectation that the employee will return to work on the days and at the times specified in the contract, even when such work occurs on non-consecutive days of the week and even when the contract is established verbally. The employment contract is of a successive nature, extending over time and not being exhausted by the immediate fulfillment of a single daily obligation; rather, the obligation is renewed continuously after each completed workday.
In an employment contract, remuneration exists because the employee provides labor power while the employer is obligated to pay wages. These wages serve as consideration and compensation for the work performed. Such remuneration generally constitutes the sole source of subsistence for the worker and their family. Accordingly, a worker who does not receive wages as consideration for services rendered - and, above all, has no intention of receiving them - is considered a volunteer worker, not an employee, thus giving rise to a different form of work contract rather than an employment contract.
Subordination is the core criterion distinguishing an employment relationship: during contracted hours, the worker cedes autonomy and transfers control over the work product to the employer. While any of the elements discussed above may appear attenuated depending on the specific circumstances of a given labor relationship, it may still be possible to recognize the existence of an employment relationship. This is not the case, however, when subordination is absent.
As demonstrated, among the various forms of work contracts, it is in the employment contract that subordination reaches its highest degree. For this reason, this type of contract is afforded special and specific legal protection in the form of a comprehensive set of labor and social rights guaranteed to the employee.
Unveiling a Contradiction in Teaching Labor within the UAB: Are the Elements of an Employment Relationship Present?
The enactment of Administrative Ruling No. 102 of 2019 substantially altered the selection procedures for the granting of UAB stipend-based compensations by regulating Article 7 of Administrative Ruling No. 183 of 2016, which provides that: “Art. 7. The selection process for stipend-based workers, conducted by the Public Institutions of Higher Education (IPES), shall comply with the principles of publicity and impersonality, with the disclosure of clear and objective criteria” (Brasil, 2016).
Administrative Ruling No. 102 of 2019 introduced a new classification system. It ties the type of stipend to specific professional groups according to their activities. For example, Articles III and IV of Article 2 - along with the sole paragraph’s final part - refer to Tutors and Supervising Professors, respectively. It should be emphasized that both the applicable infra-legal norms and Article 37 of the Constitution of the Federative Republic of Brazil (CRFB/1988) prohibit any distortion of the purpose of public administration and public services (Brasil, 1988).
It is important to note that, with regard to Tutors, Paragraph 3 of Article 6 of Administrative Ruling No. 102 of 2019 provides that the selection process shall be open to participation by the general public, requiring only compliance with the criteria established in the respective public calls, such as academic qualifications and teaching experience. In contrast, Paragraph 4 of the same Article 6 restricts participation in the selection process for Supervising Professors to tenured faculty members of the IPES, while exceptionally allowing the participation of external professors in cases where vacancies remain unfilled (Brasil, 2019).
This requirement is further reinforced by Article 7 of Administrative Ruling No. 102 of 2019, which establishes a minimum proportion between permanent faculty members and external professors in the case of Supervising Professors. As a result, all IPES have been required to modify their selection procedures following the publication of Administrative Ruling No. 102 of 2019 on May 10, 2019, adjusting their public calls to comply with its provisions.
Considering the elements outlined in the previous section and systematized in Table 3, and taking teaching labor within the UAB as the object of analysis, one may initially observe the presence of the characteristics that identify an employment contract. However, a question remains to be clarified with regard to the criterion of remuneration, given that compensation is provided in the form of a stipend-based compensation.
As Table 3 shows, the element of remuneration is weakened because the administrative rulings classify these payments as stipends rather than wages5. Nevertheless, an analysis of the concrete circumstances may lead to the recognition of an employment relationship, even when one of the elements of the employment contract - at first glance - appears to be absent from the legal labor relationship, as is the case with remuneration.
This is because Labor Law is grounded in principles of international applicability, among which the Principle of the Principle of the Primacy of Reality is particularly prominent. According to this principle, the assessment of the existence of an employment relationship must be based on what occurs in the daily execution of work - that is, on the reality of the contract - rather than solely on what is written or formally expressed in documents or even in the contract that ostensibly governs the labor relationship. A leading authority on the subject, Plá Rodriguez (2000, p. 147), clarifies this principle when referring to the so-called reality of the contract:
The meaning we attribute to this principle is that facts prevail over forms, formalities, or appearances. This means that, in labor matters, what occurs in practice is more important than what the parties may have agreed upon in a more or less formal or explicit manner, or what is stated in documents, forms, and control instruments.
Therefore, what must prevail is what is verified in the everyday reality of the labor relationship with respect to the characteristics of the employment contract, regardless of the formal designation expressed in documents. Accordingly, the analysis of remuneration must consider the legal nature assumed by this payment within the reality of the contract.
Amendments to Law No. 11,273 of 2006 and Their Impacts on the Transformation of the Legal Nature of the Stipend Paid to Supervising Professors and Tutors within the UAB
This section examines the amendments introduced to Article 1 and Paragraph 1 of Law No. 11,273 of 2006 by Laws No. 11,502 of 2007 and No. 11,947 of 2009. The purpose is to demonstrate how these legislative changes altered the legal nature of the stipend paid to the Supervising Professors and the Tutors within the Open University of Brazil (Universidade Aberta do Brasil - UAB), transforming it from a mere retributive allowance into remuneration, thus constituting a genuine consideration for services rendered.
In order to reflect on the original logical rationale embedded in the law governing eligibility for stipends and to enhance comprehension of the argument advanced herein, the original wording of the provision and its subsequent amendments are systematized below. The changes are highlighted in bold and underlined in Table 4.
Original Wording and Legislative Amendments to Article 1, Paragraph 1 of Law No. 11,273 of 2006
Continuing the analysis, it is within the context of the original logical rationale underlying Law No. 11,273 of 2006 that Decree No. 5,800 of 2006 was enacted, establishing the UAB System. At that time, the decree did not mention CAPES in its provisions. With the enactment of Law No. 11,502 of 2007, which modified the institutional responsibilities and organizational structure of CAPES, the conjunction “and” was replaced by “or.” This change eliminated the requirement for cumulative conditions - namely, active service in public basic education and linkage to one of the programs referred to in the caput of the article (which, at that time, did not include the UAB) - and replaced it with the requirement that applicants for study or research grants meet at least one of those conditions.
For this reason, we argue that the law’s original implicit logic - especially for research grants - remained unchanged. The grant amounts stayed relatively modest. This reflected a logic of supplementary compensation for teachers already linked to the State, whose basic subsistence was otherwise secured.
The inclusion of CAPES within the framework of Law No. 11,273 of 2006 - authorizing it, alongside the National Fund for the Development of Education (Fundo Nacional de Desenvolvimento da Educação - FNDE), to award study and research grants - only occurred following the enactment of Law No. 11,947 of 2009, which finally incorporated the UAB and higher education training into the legal framework.
Until that point, the legislation governing study and research grants was limited to the initial and continuing education of basic education teachers. However, from Law No. 11,947 of 2009 onward, Article 1 and its sole paragraph were amended to include CAPES as a granting authority and to encompass faculty members linked to the UAB, with a focus on higher education training, as shown in Table 4.
These changes did not revisit the original logic of Law No. 11,273/2006 regarding research grants. The retributive rationale stayed the same. It implicitly restricted eligibility to teachers linked to the programs covered by the law - with the UAB added only from 2009 onward.
The preceding analysis aims to show that the law authorizes stipends only for teachers already affiliated with public higher-education institutions (IPES), not for the general public. This is further evidenced by the stipend amounts established by law, which, under the terms of the analyzed calls for applications, became clearly disproportionate to the workload and responsibilities imposed on faculty members.
A systemic analysis of Administrative Ruling No. 183 of 2016 reveals that it adheres to this logic, even though it does not expressly state such a requirement. This is evident in Article 8, item “a,” which establishes the obligations of UAB grant holders:
III - OBLIGATIONS OF STIPEND HOLDERS WITHIN THE UAB SYSTEM Article 8. Stipend holders within the UAB System shall enter into a Commitment Agreement with the IPES, pursuant to the model provided in Annexes II to X, by which they undertake to: a) perform the activities described in the Commitment Agreement, without prejudice to other requirements imposed by their educational institution (Brasil, 2016, emphasis added).
It is therefore clear that Administrative Ruling No. 183 of 2016, which regulated the guidelines for granting and paying stipend-based compensations to participants involved in the preparation and delivery of undergraduate and continuing education programs within the UAB System, did not expressly require candidates for Supervising Professors or Tutor positions to be formally affiliated with an IPES. Nevertheless, a systemic reading of the Administrative Ruling indicates that this premise was implicitly assumed.
Administrative Ruling No. 102 of 2019, which regulated Article 7 of Administrative Ruling No. 183 of 2016, explicitly introduced a requirement of institutional affiliation with an IPES, albeit limited to the selection of content developers and Supervising Professors, subject to proportionality criteria that, if unmet, allow for the selection of external faculty. With regard to Tutors, however, the selection process is expressly open to the general public (Articles 6, §§3 and 4, and Article 7 of Administrative Ruling No. 102).
Thus, by no longer restricting selection processes to candidates affiliated with IPES and extending eligibility to the general community, selection processes and their corresponding calls for applications - considered administrative acts - initially deviated from the purpose of Law No. 11,273 of 2006. This deviation became even more pronounced following the implementation of Administrative Ruling No. 102 of 2019, another administrative act that should, therefore, be subject to the limits imposed by statutory law (Di Pietro, 2023).
To conclude the discussion concerning the legal nature of the UAB stipend paid to Supervising Professors and Tutors, it is necessary to consider that, by analogy with internship stipends, study and research grants are generally not intended to constitute income, but rather to provide financial support for educational or training opportunities (Martinez, 2023).
When this purpose is distorted, the internship agreement becomes null and is transformed into an employment contract, giving rise to all labor rights and entitlements inherent thereto, regardless of the formal instrument governing the legal relationship. As Martinez explains:
In internships, there may cumulatively exist personal service (the intern’s personal characteristics are relevant to the agreement), onerosity (stipends), alterity (services rendered for the benefit of the granting entity), non-eventuality (predictable repetition of internship hours), and even subordination (imposition of time and manner of performance by the granting entity). The distinction between the two legal institutes becomes clear when one examines their respective purposes, concluding that the intern’s objective is practical training, not personal or family subsistence (Martinez, 2023, p. 109).
The same reasoning applies to the specific case of faculty members working within the UAB. On the one hand, they cannot be considered students, as they are selected to engage in the teaching-learning process by training other teachers at the higher education level, with academic qualifications and teaching experience constituting explicit selection criteria. On the other hand, it is incorrect to characterize the financial amount received as a stipend with a retributive nature if its purpose is not to promote their training, but rather to ensure their personal and family subsistence.
Typical stipends or grants associated with internships, study, or research - when the legal relationship is unequivocal - may resemble cost allowances, which are compensatory in nature. In such cases, work is not intended to support the individual’s livelihood, but to contribute to their education, with the stipend serving merely to reimburse expenses related to training activities.
This reasoning was explicitly adopted by the Office of the Attorney General of the Union (AGU) in a recent case concerning compensation for delayed payment of a study stipend, adjudicated by the Federal Regional Court of the 1st Region (Case No. 1000781- 91.2020.4.01.3604). According to information published by the AGU:
The stipend has the legal nature of a cost allowance aimed at fostering qualification activities. It is not, and should not be confused with, income necessary for the subsistence of stipend holders, thus constituting a merely supplementary characteristic in relation to the regular remuneration already received as a teacher […] (AGU, 2020).
The judicial decision in that case clearly involved a student engaged in a qualification program, specifically a Professional Master’s Program in Letters (PROFLETRAS). This situation does not correspond to the reality of UAB faculty workers, whose activities align with work in the strict technical-legal sense, that is, employment.
For a payment to be classified as a cost allowance and thus retain a compensatory character, it must strictly serve that function. It cannot increase the workers’ assets nor remunerate work performed; rather, it must merely reimburse expenses necessary for the provision of services (Martinez, 2023).
Even when paid habitually, a cost allowance may not exceed 50% of monthly remuneration. Only under these conditions does it avoid constituting a basis for labor- or social-security contributions, as it lacks a wage nature (Brasil, 1943).
However, in the case of Supervising Professors and, even more evidently, Tutors, Administrative Ruling No. 102 of 2019 allowed the work to be performed by teachers from the general community, without any affiliation with an IPES. Consequently, it is entirely plausible that selected teachers rely exclusively on the remuneration received from UAB activities for their subsistence.
Thus, payment in the form of a stipend serves to distort the nature of the financial amount, enabling it to assume a clearly wage-like character. For this reason, it is plausible to admit that the concrete situation of faculty workers within the UAB encompasses all elements characteristic of an employment relationship, including onerosity.
Concluding remarks
A new division in the organization of academic teaching labor has become evident, leading teaching professionals to new forms of devaluation of both their formal education and their work, with direct repercussions on their quality of life. This phenomenon, observed specifically within formal education, can be compared to the degradation of work and the erosion of social rights experienced by professionals across a wide range of fields, particularly since the 1990s, and commonly analyzed through the lens of precarization of labor.
Within this framework of labor precarization, it is concluded that the regulatory changes introduced over time through norms and administrative acts governing the selection of faculty members to work within the UAB have contributed to altering the legal nature of academic teaching labor. These changes allow the concrete employment relationship to exhibit defining characteristics of an employment relationship, despite the formal denial of such a relationship, in clear contradiction to the Principle of the Primacy of Reality.
The analysis of Law No. 11,273 of 2006 clarifies that the implicit logic of its wording limits the granting of stipend-based compensations to teachers affiliated with Public Higher Education Institutions (IPES), so that, under this condition, they may participate in state-funded programs either as students or as instructors, receiving study or research grants, respectively.
Accordingly, the amounts paid through these grants were conceived as a supplementary allowance, premised on the assumption that the teachers addressed by the law already had their subsistence secured through an employment relationship with the State. This rationale explains the relatively low stipend amounts, as the law does not authorize their allocation to the general community. This logic was preserved - albeit implicitly - by Administrative Ruling No. 183 of 2016, but was not upheld by Administrative Ruling No. 102 of 2019.
This pattern is part of the wider process of precarization affecting teaching professionals. It manifests in several ways: the devaluation of teacher education, inadequate remuneration for academic work, and the weakening of labor ties. Although such precarization is not exclusive to the UAB context, it appears to be more advanced within it. These issues must therefore be brought to the forefront of discussions surrounding the revision of the regulatory framework for Distance Education, as recently proposed by the Ministry of Education (MEC).
This process, conducted under the authority of the State, derives an appearance of legality from the laws and administrative instruments enacted by the State and public administration (e.g., Administrative Ruling No. 102 of 2019). Yet this practice violates the principle of legality by distorting the purpose of Law 11,273/2006, which restricts selection to teachers affiliated with public higher education institutions (IPES), rather than allowing open recruitment for Supervising Professors and Tutors.
References
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1
Data availability: The entire dataset supporting the results of this study was published in the article itself.
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1
English version by Pedro Miranda Mendes. The authors take full responsibility for the translation of the text, including title of books/articles and the quotations originally published in Portuguese.
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2
The designation used here follows the terminology adopted in UAB legislation, even though it raises controversy regarding whether Tutors should be considered teachers. This perspective will be discussed later.
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3
According to Mill (2006, p. 17), “[...] the concept of distributed teaching model does not refer to just any collective of workers, but rather to a collective of workers who, even with diverse training backgrounds, are responsible for the teaching-learning process of a given course” (author’s emphasis).
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4
The employment contract ensures rights that the employer is legally required to observe and that the employee may neither waive nor renounce. Because it receives special protection under Brazilian law, the employment contract must be clearly distinguished from other forms of work contracts. Accordingly, in light of the concrete circumstances of each case, an analysis of the constitutive elements set forth in Articles 2 and 3 of the CLT (Brasil, 1943) is required in order to determine whether an employment relationship exists.
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5
Unlike a stipend-based compensation, which has the nature of an allowance paid to enable the performance of work, wages constitute consideration paid in exchange for work that has actually been performed.
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Editor:
Prof. Dr. Fernando L. Cássio
Data availability: The entire dataset supporting the results of this study was published in the article itself.
