São Paulo – In the wake of the labor reform, which took effect in July 2017, a new form of law fare, as the activism of courts and magistrates is known not exactly in defense of the law or the law, but for specific purposes of localized groups. Labor reform has resulted in criminalization of labor in segments of the Judiciary, with an attack on labor rights. The case of the Correios, symptomatic of the effects of labor reform, is a good example, woven in a non-random weave.
Summoned by the company to arbitrate on a topic foreign to its area, the Supreme Federal Court (STF) overturned an injunction that had been granted by the Superior Labor Court (TST) – this one, dedicated to the matter – and decided that the collective agreement signed between the workers and the Post Office would not be valid until the following year and expired there.
It was August 21, the fourth day of the strike, started to claim the
maintenance of the clauses, since attempts to negotiate with the
the company’s board of directors, in the base date period, had failed.
A month later, without the support of the injunction that protected the labor clauses signed over years of mobilization and negotiation, the postal workers’ strike went to trial at the TST, as in a return to the appropriate stage. But the plot seemed written.
Despite two attempts at conciliation made by members of the court, Minister Ives Gandra da Silva Martins Filho, former court president and always a defender of labor reform, disagreed with the action’s rapporteur, Kátia Magalhães Arruda. Katia proposed conciliation between the parties, which would minimize the loss of rights for workers.
Gandra’s maneuver, which was regularly planned, but disdainful of the rapporteur’s prerogatives, allowed him to draw votes from the majority of TST ministers and impose a severe defeat on the strikers.
Of the 79 clauses existing in the convention, prior to the strike, only 29 remained. Among those that fell, daycare assistance, 180-day maternity leave and assistance for couples who work at the company and have children with disabilities.
The strikers, who did not ask for new rights, only the preservation
of them – some over 15 years old – have not even tried
defeat, as is common when not everything goes according to plan
a salary campaign.
“The STF’s interference in the process is something we’ve never seen before. The company’s management ignored us. And Gandra’s gesture was disrespectful, a blow ”, comments Amanda Corsino, president of the category’s union in the Federal District and deputy secretary of Labor Relations at CUT Nacional.
But this judicial activism in relation to labor rights has already
manifested itself before the recent episode involving the Post Office.
With a magistrate’s phlegm, the vice president of the TST, Minister Luiz
Philippe Vieira de Mello Filho, also criticizes the interference of the
Supreme Federal Court in the field of labor.
When referring to the court’s decision that the regulation of outsourcing in core activities is constitutional, which took place in June this year, Mello Filho states: “In order for there to be a change, it should not have been through the Judiciary, especially the Supreme, which is not a question of their uniqueness, they do not know how life flows in this capital-labor relationship ”.
The case involving the negotiations between the Post Office and its workers, however, establishes itself as a landmark in the escalation of the law fare labor. “It is the most symbolic example of the effects of labor reform and its use to the disadvantage of workers. The company started to use the non-ultraactivity argument (rights acquired in a previous collective agreement cease to be valid at each base date) to start reducing what workers had in a collective agreement ”, comments Eymard Loguercio, labor lawyer.
In his opinion, the company began to take ownership of the new legislation at the moment when it refused to negotiate, already eyeing the advantages that a strike would represent.
“The Labor Court will only mediate negotiation by mutual agreement. But if there is a strike, it can examine the conflict independently of the parties, ”he says.
When the TST gives a favorable injunction to workers, the company’s appeal to the STF is another reflection of the reform and of what the lawyer classifies as “power inflation” that the Supreme Court has been accumulating since the judgment of criminal action 470, of the so-called “monthly payment” .
“AP 470 unleashes a very different way of acting from the Supreme Court than the traditional one. It was at 470, even before Lava Jato, when the court started to examine and legislate – because that’s it, the court ends up creating rules – on certain issues that are not directly written in the Constitution, but that have some media appeal or clamor from sectors dominant. And, in the labor case, this appeal is clearly the business appeal, which states that our law is very protective and that it hinders economic activity ”, analyzes Eymard.
Although labor matters are included in the Constitution, which means that the Supreme Court’s analysis on the subject does not always represent anomaly, the court’s “power inflation” already runs over the Constitution itself and opens the way for further lowering of rights.
This occurred, for example, when the court, in April, ruled out the need for collective bargaining to reduce wages or temporarily suspend the contract.
More than the decision itself, issued when the Supreme Court judged the effectiveness of the provisional measures to face the covid-19 pandemic, are the justifications given for the votes in favor of the government, which reveal much of the criminalization of work and its rights by of the Judiciary.
To put aside an item expressed in the Constitution, that it is not
reduces rights without collective agreement, part of the ministers of the Supreme
stated that there was no conflict at stake.
To justify his vote, Alexandre de Moraes stated that there was
parties’ agreement on the desire to keep jobs, which
would rule out the need for negotiation.
“This logic that you can reject collective agreement only by
simple fact of being employed reduces the right to work to the fact that
have a job. It is as if the fact of having work was, in itself,
privilege ”, criticizes Loguercio.
What this report calls law fare labor can also be seen in recent practice of the TST against its own regional instances.
The Corregedoria and the Presidency – after Gandra took the post Maria Cristina Peduzzi, also pro-labor reform – have since the beginning of the pandemic at least 20 injunctions filed by the Public Ministry of Labor (MPT) and granted by different regional courts, the TRTs .
All injunctions involved requests for measures against coronavirus contamination, such as the provision of protective equipment.
Law does not create jobs
Cassations – revocation of acts of lower courts – are interpreted as an attempt at centralization, another reflection of labor reform, to avoid a jurisprudence that is gradually favorable to workers and unfavorable to the logic of reform.
An activism and interference process driven not by the idea of justice or compliance with the law, but by a use in favor of group interests. The cassations are reported on the TST internal affairs website.
Meanwhile, the labor market remains narrow and precarious,
contrary to the most vaunted of the sales arguments presented
defenders of labor reform.
“There was no qualitative reduction as to the object of labor claims. They said: ‘Ah, there in the Labor Court you can ask for anything, anything, everything can be done there’. Today, the violations of the labor law that have been denounced remain the same, that is, a request for termination of contract funds, ”says TST vice president, Mello Filho.
He refers to the boss’s popular default on the dismissed employee.
“This confirms what the National Council of Justice had already
found: in the general sum of the actions filed, between 47% and 62%,
when one or another installment was added, they are severance payments ”,
says Mello Filho.
At this point comes the confirmation of another of the propaganda lies
reform, warns the minister. “This also contradicts the thesis that
there would be greater compliance with legislation with simpler and more
clear. There wasn’t, it was the same ”, he says.
Worker, social outcast
For him, this objective destruction of social rights and the dimension
subjective, which is the elimination of the identity of the human person with
his work is creating a generation of “social outcasts”.
Pariah is the marginal individual, who does not belong to any group or caste. It is the criminalization of work and its rights.
Mello Filho calls into question the reduction of new cases filed in labor courts since the reform was approved.
Although proven by the numbers, the reduction does not mean something
positive, unlike the celebrations made through the media
corporate. “We had a relationship between the increase in unemployment and the
increased demands. The absolute number of demands fell within the scope of
Labor Justice, despite an increase in unemployment and
informality. That means to me that access to justice has been
reduced ”, he says.
According to him, there was a fall in the inverse proportion of unemployment and
informality, with the fear that, with the new rules, the
worker has to pay process costs and even fees
employers’ lawyers if defeated in the lawsuit.
For the magistrate, this forced reduction, which tries to undo the nexus
logical causal that governs the relationship between capital and labor and,
remove the role of mediator from the Labor Court, will not result in
“The unresolved conflict does not mean that it disappears, it is
being only postponed and can generate a pocket of future indignation and
bring some consequence. This is history. The reason for the Justice of the
Work is social peace ”, he warns.
Worker, a generic?
The same goes for the offensive against unions, whose role
labor reform expressly seeks to destroy. “Unions are
the compensating elements in society, economically. They are the only ones
can balance that relationship. They have to be strengthened, not
weakened ”, comments the minister.
In his opinion, the set of these attacks enshrined in the reform
are changing the nature of the work. “I, a worker, became a
generic ”, he summarizes.
However, as stated by the minister himself, this situation is not pacified ad infinutum. Neither
unions are prostituted, not in their entirety. Part of
alternatives is built in the heat of the hour, as happened with the
tankers in February this year, when they decided to strike.
unions are the compensating elements in society, economically.
They are the only ones who can balance this relationship. They have to be strengthened,
and not weakened ”Minister Mello Filho, TST
Because it occurred before the traditional collective bargaining period
category, the strike ended up functioning as a shield from the voracity that the
TST would have demonstrated in September, the official month of the base date of
The evaluation is by the general coordinator of the Unified Oil Workers Union of São Paulo, Juliano Deptula.
“We went on strike in February to demand compliance with the agreement
collective which had been closed in September of the previous year. THE
The company’s intransigence forced TST mediation. We did strike one
just before the pandemic arrived, a strong strike. If we had
arrived at collective bargaining now at TST, with the current conjuncture,
maybe it was different, we had not guaranteed the clauses that
we guarantee. It was the need that led us to strike, it was not a decision
strategic, no ”, he reports.
He believes that even the strike would have been difficult
by the pandemic. However, despite the strike and the degree of pressure that the
threat of oil shortages can exert, tankers do not
escaped the law fare of labor justice, with attacks such as fines, decided by the same Supreme Court that penalized postal workers.
Reflections of the coup and labor reform. With STF, with everything.
With information from Sindipetro.
more unemployment and more informality
São Paulo – Government, businessmen and some parliamentarians were in tune with the defense of the bill that, if approved, would lead to the creation of Law 13,467 in 2017. The so-called labor reform, after all, would lead to the creation of millions of jobs. This would happen to the extent that it would end the rigidity of the legislation, which they treated as being “plastered”, facilitating hiring and giving the much-needed “modernization” to the Brazilian labor market.
Because the law completed three years on November 11 “and nobody celebrated, not even timidly”, recalls analyst Marcos Verlaine, from the Inter-Union Department of Parliamentary Advisory (Diap). “Among the expectations generated by the authors, the government of that time, the businessmen, who sponsored, defended and acted strongly in Congress to approve it, the media and reality, remained the harsh reality”, he says, in an article. He defines the measure passed by Congress as a “capital Trojan horse” to implode labor rights.
The insistent defense of the “negotiated over the legislature”, a recurring expression at the time, was not to privilege negotiation, notes the analyst. “It was to remove rights, since the negotiations – both CCT (ccollective labor agreements) and ACT (collective labor agreements) – they never prevented, on the contrary, that the conventions surpass the CLT, nor that the agreements surpass the conventions. ”
The “millions” of jobs did not come, even before the pandemic. The growth in occupation was basically due to informal work. In 2016, the year before the “reform”, the country had 10.1 million unpaid employees in the private sector and 22.4 million self-employed workers. Last year, they were 11.6 million and 24.2 million, respectively (check table). The data are from the National Household Sample Survey (Pnad) Continua, from IBGE.
Modernization or precariousness?
Employment with a wallet fell. And the Gini index at work, which measures inequality, which until 2015 fell, rose again the following year and has not stopped.
The “reform” introduced hiring modalities, such as intermittent work. They were also presented as items of the necessary “modernization”, but union members and researchers identify them as additional signs of precariousness in the market. Although still small, the participation of the intermittent modality has been growing.
This week, the Federal Supreme Court (STF) began to judge direct actions of unconstitutionality against intermittent work. In his vote, the rapporteur, Minister Edson Fachin, considered the item unconstitutional and causing damage to workers’ health. But his colleagues Kassio Nunes Marques and Alexandre Moraes were in favor of the sport. The trial was interrupted by a request for view from Minister Rosa Weber.
If it is impossible to revoke the law in its entirety, Verlaine suggests specific changes, citing intermittent hiring. “It is necessary to negotiate with all political and social actors in order to bring about changes in this scorched earth scenario” he argues.
read more: ‘Labor Reform’: Stories of a False Promise and Changes in ‘Endless Destruction’
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