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This Friday (4/17), the STF judged the constitutionality of the provisions of MP 936, which institutes an emergency program for the maintenance of employment, income and economic activity during the Covid-19 epidemic. This is the ADI 6,363.
Nélson Jr. (SCO / STF)
The main device attacked addresses the possibility of individual agreements, between boss and employee, that can reduce working hours, wages or even temporarily suspend labor contracts.
But paragraph 4 of Article 11 of the MP stipulates that the individual agreements stipulating the restrictions “must be communicated by the employers to the respective labor union, within a period of up to ten calendar days, counted from the date of its conclusion.”
So the question remained: what is the role of the unions in this negotiation?
By mandate of the rapporteur of the action, Minister Ricardo Lewandowski, determined that the provision must be interpreted in accordance with the Constitution: during the period of ten days (after the individual agreement), the union can initiate “collective negotiations, regardless of their inertia in accordance with as agreed by the parties. “
In other words, the last word would be with the union.
However, in the Plenary trial this Friday (4/17), the opposite opinion prevailed, that of the divergent vote of the Minister Alexandre de Moraes. For him, the employee may not comply with the individual agreement, assuming the risk of being fired. Lewandowski’s mandate was revoked.
According to the prevailing understanding, the conditioning agreements already concluded for the subsequent scrutiny of the unions undermine legal certainty and jeopardize constitutional values such as social protection of employment and proportionality, in addition to reducing the effectiveness of the provisional measure.
Some lawyers heard by Conjur He praised the decision, highlighting the legal certainty it provides. Others drew attention to the fact that individual agreements will not necessarily be concluded with parity of arms.
Legal security
For Antonio Carlos Aguiar, a specialist in labor law, a partner of Peixoto & Cury Advogados, “the STF decision provides legal certainty to labor relations in times of public calamity.” “There is no collective conflict to resolve, but rather convergence on the need for alternatives to keep both involved: the company in its activity and the employee in his dignity (dignified survival).”
Marcelo Marinho, partner of Terciotti Andrade Gomes Donato, agrees.
“We are experiencing a historic moment in the economy and in labor relations in the modern era. The revocation of the precautionary measure creates greater legal certainty for employers and employees, since it offers the possibility of concluding an individual agreement directly between the parties, without the union seal professional Both employers and employees need swift and urgent action Bringing all concluded agreements to the union seal would do great harm to the goal of the standard which is job preservation and consequently of the economy. Exceptional moment, exceptional measure “
Carlos Eduardo Dantas Costa, a partner at Peixoto & Cury Advogados and professor at FGV-SP, points out that “the decision should make the agreements gain more speed and volume again, since the companies will deal directly with the employees, without the participation of the unions.”
Constitutional crisis law
Second Paula Corina Santone, a partner in the Labor area of Rayes and Fagundes Advogados, “prevailed the understanding that the specific case deserved a trial within the reasonableness and reality imposed by the pandemic of the new coronavirus and that it was important to recognize a Constitutional law of crisis, from the MP came to preserve the jobs and earnings of the workers. “
However, he points out that it is still necessary to await the result of the ruling on the merits of the IDA, since the session this Friday considered only the precautionary measure. But the new trial “is likely to follow the line of what was observed today in this session.”
In a note published by the National Confederation of Industry (CNI), the STF decision “will guarantee the survival of companies and the preservation of jobs.”
Negotiation?
For José Roberto Dantas Oliva, Retired lawyer and labor judge, Despite the fact that unions are losing prominence in defending workers, especially after the reform, the categories are being treated as if they are in a position to negotiate. “Obviously, they don’t. There is a socioeconomic imbalance. There will be irreparable losses,” he says.
“Unfortunately, we are experiencing a moment of enormous social setback that not even the pandemic justifies. Obviously, in a democratic state of law, the Supreme Court’s decision is respected, but, with due respect, I understand that the unions would have conditions of negotiate, even if electronic tools and means are used, such as those that, in fact, have been used by the Judiciary itself. Many are doing it. The Constitution, in my opinion, is scratched, infected by a provisional measure that, at less until Congress analyzes it, it will take effect, “says Dantas Oliva, who published an article on Conjur this Wednesday (4/15).
Tainã Góis, from the office of Mauro Menezes & Advogados, affirms that the function of the unions “would be precisely to guarantee fairer agreements, capable of mitigating the effects of the crises, allowing social organization against actions that take into account private interests.”
Another critic of the decision is Livio Enescu, former president of the Association of Labor Lawyers of São Paulo (AATSP). For him, there may be damage to workers’ rights and constitutional principles that require the participation of union entities in the negotiation of special conditions in labor relations. “Given the pandemic and the vulnerability of workers, we will have the possibility of an effective abuse of economic power in labor relations, which will cause an avalanche of labor complaints in the post-pandemic period. This will be a real opportunity for companies and entrepreneurs. “
The National Association of Labor Justice Magistrates (Anamatra) commented on this: “Even if the text of MP 936 is upheld by STF decision, in a preliminary assessment, there is a way forward in Parliament that will certainly cautiously discuss the conversion or not in the law of the devices, considering the social consequences, especially, of the impositions that come from individual agreements “.
ADI 6,363
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