A decision by the Federal Supreme Court (STF) on June 2 opened space for discussions in the legal environment about the direction of workers’ rights after the “reform” implemented in 2017, still during the government of Michel Temer (MDB).
The Supreme Court confirmed a collective agreement clause that suppresses rights provided for in labor legislation, in a vote of the STF collegiate, which won the case to Mineração Serra Grande S/A, from Goiás, in appeal against a decision taken by the Superior Labor Court ( TST).
The collective agreement signed foresaw that the company would provide transportation for workers between the urban center of the city of Crixás and the mining company’s headquarters, but without payment for the hours spent commuting. The TST annulled this clause of the agreement – and it was this decision that was overturned by the STF.
Centrals criticize the decision
In a note on its official website, the Central Única dos Trabalhadores (CUT) regretted the overthrow, and recalled that the Consolidation of Labor Laws (CLT) and the Labor Court generally authorized “the negotiated to prevail over the legislated”, as long as does not imply the withdrawal of rights. Since the changes in labor legislation, however, at the request of employers, the criterion can now be applied in reverse order: the Court now has the prerogative to withdraw rights.
Lawyer José Eymard Loguércio, who represented CUT Nacional in the Supreme Court vote, said that collective bargaining should be valued, but the Judiciary cannot naturalize the withdrawal of rights. The entity was invited to participate, even though it is not directly involved, as a representative of workers in general, who have a direct interest in the process.
“When a naturalization of the regression of rights for the construction of collective autonomy is carried out, we start to unprotect again, because there is no principle of equivalence between the parties”, he said, during the first day of the trial in the Supreme Court (Wednesday, 1st).
The secretary general of Intersindical, Edson Índio, highlighted that the suppression of the right to pay for hours spent on commuting had no counterpart. He said that the decision of the Supreme follows the position of employers, who have long been pressing to be able to withdraw rights, which culminated in the “reform” of Temer.
“It was a setback, but we didn’t expect anything different, since decisions on matters that reach the STF have generally been bad for workers. This debate, including payments for hours spent on itineraries to places of difficult access, took place during the reform process, this was already foreseen”, he lamented.
Índio also said that the Supreme Court’s decision is dangerous in less specific points. For example, when it is mentioned that labor rights can be negotiated below legislation, as long as a “minimum level” of rights is respected.
“There can only be negotiation to improve what has already been achieved. Negotiating to reduce is that you cannot. We, centrals and unions, are not going to negotiate below the level we already have. This even goes against the constitutional principle of non-social regression”, he warned. .
Alert for workers
For the labor judge, Valdete Souto Severo, who is also a professor of labor law at the Federal University of Rio Grande do Sul (UFRGS), the case should be carefully observed by professional associations. She recalls that the discussion in the higher levels of Justice only existed because the collective agreement provided that workers would not be paid for the hours they spend on the transport provided by the company.
“In this specific case, the discussion is not related to the issue of ‘agreed on the legislated’. The STF is taking away a right provided for by law, but withdrawn in agreement. What the Supreme is saying is that it is possible for a collective agreement to withdraw a right provided for by law”, he warns.
The judge draws attention to the fact that the legislation in force provides for minimum requirements for labor relations, and this includes, for example, the maximum working day, the need for a minimum wage and the provision of safety conditions. And he warns: it is up to the unions to negotiate to achieve better conditions for the categories they represent – and not worse.
“This decision is very important to be reflected and discussed, as it shows how the STF is behaving in the face of some rights that are recognized as fundamental. The problem is when conventions and agreements remove rights, and they increasingly remove more. The union signed an agreement “, highlights.
Spaces in dispute
Professor at the Law School of the University of São Paulo (USP), the jurist Jorge Souto Maior follows the same line, and says that the working class should not accept economic arguments that “if the company does not reduce rights, it will not be able to maintain”, in negotiation environments and reinforces that the categories must refuse to accept proposals that withdraw previous achievements.
The decision of the STF in the case of the mining company from Goiás, according to Souto Maior, does not “make scorched earth” in terms of labor rights. The case is very specific and there are still many spaces for dispute. “It is not a simple situation, but it is absolutely necessary that the unions, the union centrals and the labor movement as a whole give an answer in another direction: not to negotiate anything that involves the reduction of rights. “, he ponders.
The mining company from Goiás belongs to the South African group AngloGold Ashanti, one of the largest in the area in the world. The decision taken benefits the giant, and, as it is a specific decision, it does not have a favorable impact on other companies, in this and another sector.
“In this case, it is a benefit for this company to the detriment of others, which do not achieve the same level of benefit reduction. When workers sign an agreement to withdraw rights, they favor big capital”, says Souto Maior.
“It will only be possible to reverse this scenario with the working class acting as a class. What interferes in the lives of oil workers must also concern subway workers. What interests metallurgists, also interests bank employees. one category, the others must be in solidarity”, he adds.
Editing: Rodrigo Durao Coelho