Minister Lewandowski rejected embargoes at ADI 6363 on union participation in individual agreements

It was clarified, in the decision, that the Provisional Measure remains in force, since none of its provisions was suspended outright, affecting full labor relations since the date it was edited

In Direct Action of Unconstitutionality 6,363 / DF in which Reporting Minister Ricardo Lewandowski partially deferred the required precautionary measure, linking the validity of individual agreements between employer and employee, on reducing working hours and wages or temporarily suspending employment contracts, provided for in MP 936/2020, with the express manifestation of the union entity, which may initiate collective bargaining, there was a judgment on the Declaration Embargoes opposed by the Attorney General of the Union, with the rejection of the appeal due to the absence of the defects specified in article 1023 of CPC / 15.

In the appeal, it was claimed, in summary, the reconsideration of the embargoed decision or alternatively its reform to affirm the production of immediate legal effects of the individual agreements entered into as provided for in MP 936 and attribution of suspensive effect to the appeal, considering the delay that can be caused by the need for union approval regarding access by workers to the emergency benefit.

It was clarified, in the decision, that the Provisional Measure remains in force, since none of its provisions was suspended outright, affecting labor relations in full since the date on which it was edited, subject to paragraph 4 of article 11 , object of the partial concession of the injunction, which, according to Minister Lewandowski, went through “a necessary supplementation so that it could make a minimum of sense in face of the Magnificent Text”.

Regarding the attribution originally conferred by the MP to the unions to only be communicated of the individual agreements, it was stated in the decision that “it would not be imaginable that the constituents of 1988 had reserved the modest role of mere archivists of employment contracts”, adding that The real intention of the fourth paragraph would be “so that the union fulfills its constitutional duty to inspect the strict observance of workers’ rights by the bosses”, so that the union entity “questions any abuse or excess practiced by the employer”.

In this sense, Minister Lewandowski declared “it is not too much to insist that the Provisional Measure itself contested here is that it instituted the obligation to communicate the individual agreements to the union. And from this communication – which cannot be taken as a simple rhetorical figure – some effect must be extracted ”.

Regarding the doubts that have arisen regarding the potential legal uncertainty, the decision explains how the individual agreements already concluded “produce immediate effects, as from their signature by the parties, including and especially for the purposes of payment of the emergency benefit within the stipulated period. , except for the supervenience of collective bargaining that may modify them, in whole or in part “, clarifying with regard to any difficulties in contacting the unions” it is up to the employer to adopt all measures within its reach to locate the union, the federation or the confederation able to receive the communication ”, under penalty of“ loss of the validity of the individual agreement due to non-compliance with essential formality ”.

Still on this issue, Minister Lewandowski maintained that “the embargoed decision, in all evidence, did not cause any legal uncertainty. On the contrary, it sought to lend reliability to individual agreements, mainly because it only enforced the provisions of the Constitution as to how to lend validity to the intended reductions in wages and working hours ”.

Recall that the referendum on the precautionary measure in ADI 6.363 / DF was included in the trial calendar, by the President of the Supreme Court Minister Dias Toffoli, for tomorrow, April 16, 2020, during the 8th extraordinary session with start scheduled for 14:00 , when it will be considered by the Plenary of the Court.

By: Wilson Sales Belchior