Minister Lewandowski decides that the individual MP 936 agreement is only valid after the union’s manifestation

“They will only be validated, that is, they will only have full legal effects, after manifestation of the employees' unions”

In Direct Action of Unconstitutionality 6,363 / DF, Reporting Minister Ricardo Lewandowski partially deferred the required precautionary measure, in order to give interpretation according to the Constitution to § 4, of article 11, of MP nº 936/2020, so that the individual agreements between employers and employees regarding the reduction of working hours and wages or temporary suspension of employment contract “will only be validated, that is, they will only have full legal effects, after the manifestation of the employees’ unions”, “so that this, if they want, deflagrate collective bargaining, importing its inertia in agreement with what was agreed by the parties ”.

The text of the MP provided that the individual agreements should be communicated to the union by the employer within 10 days “the individual agreements for reduction of working hours and wages or temporary suspension of the employment contract, agreed under the terms of this Provisional Measure, must be communicated by the employers to the respective labor union, within up to ten calendar days, counted from the date of its celebration ”, however, with the court decision, the validity of what was agreed between employer and employee is linked with the express manifestation union entity.

Understand the specific case: the ADI with a precautionary request was filed by a political party challenging several provisions of MP No. 936/2020, sustaining the vulnerability of the rights and guarantees of associated workers, according to the initial petition, with the violation of constitutional rules dealing with the wage irreducibility, except as provided for in a collective agreement or agreement (art. 7, VI); duration of the working day (art. 7, XIII); recognition of collective labor agreements and agreements (art. 7, XXVI); legitimacy of union entities to defend workers’ rights (art. 8, III); and mandatory participation of unions in collective labor negotiations (art. 8, VI); requiring, among other requests, the suspension of paragraph 4 of article 11 of that legal rule.

The Reporting Rapporteur highlighted the urgency in the assessment of the injunction because the MP was challenged on the date immediately after the effective date, along with the singularity of the emergency situation experienced by the country resulting from the dissemination of COVID-19.

In his decision, the Rapporteur Minister considered that “the uncertainties of the moment lived cannot allow the uncritical adoption of any measures that promise the maintenance of jobs, even if well intentioned, especially if they violate – as they appear to violate – the constitutional and legal order of the Country ”, later emphasizing“ legal or contractual provisions that may reduce the desirable balance between the different parts of the employment relationship, will certainly result in an offense to the principle of the dignity of the person and to the postulate of valuing human work, enshrined in arts. 1, III and IV, and 170, caput, of the Constitution “, adding” for this reason, the contested rule, as set, in principle, cannot survive “.

Regarding the text of paragraph 4 of article 11 of the MP, the decision indicates that “the simple communication to the union, devoid of legal consequences, continues to face the provisions of the Constitution on the matter”, considering that the intention of the constituent legislator , pointed out in the decision, consists of “protecting workers – taking into account the legal presumption of their under-sufficiency – against substantive changes in the respective employment contracts, without the assistance of the unions that represent them”.

Minister Lewandowski also stressed the “extreme caution” that should guide the work of the Judiciary and the STF, when facing the ADI theme “with due parsimony, seeking to preserve as much as possible the normative text under attack – certainly edited with the best of purposes – without, however, renouncing its non-delegable task of conforming it to constitutional dictates ”.

ADI 6,363 / DF was included in the judgment calendar, by the President of the Supreme Court Minister Dias Toffoli, for the next April 16, 2020 during the 8th extraordinary session, when it will be considered by the Court’s Plenary.

By: Wilson Sales Belchior