No collective bargaining is necessary for mass dismissal, Ministers Marco Aurélio and Alexandre de Moraes decide

The RE 999.435 / SP in which Theme 638 of the General Repercussion is discussed (need, or not, of prior collective bargaining with the workers’ union for the mass dismissal of employees) is scheduled for an extraordinary session of 03/25/2021. The rapporteur, Minister Marco Aurélio, voted providing the extraordinary appeal, in order to reform the appealed judgment, proposing the thesis of the need for prior collective bargaining: “the mass dismissal of workers does not need collective bargaining”, accompanied by Minister Alexandre de Moraes .

In the specific case, a company in the aeronautics sector filed an extraordinary appeal in the face of a TST ruling alleging an offense against art. 7, I, CF / 1988, art. 10, of the ADCT, among other provisions, under the argument that the decision attributed “to the normative power of Labor Justice a task that the 1988 Text reserves the complementary law, invading the sphere of competence of the Legislative Power”, since there is no law requiring prior negotiation with union entities in cases of collective dismissal.

In the beginning, the TST had established the premise, for future cases, as to the necessity of prior negotiation with the union for the collective dismissal of employees, which would not allow unilateral exercise by the employer, since it is not a potestative right. In the decision, it was emphasized that as collective bargaining with the exercise of the defense of the workers’ interests before the company is unfeasible, the collective bargaining lawsuit aimed at regulating the relevant effects would be applicable.

It is worth explaining that during the processing of the extraordinary appeal at the STF there was the Labor Reform (Law No. 13,467 / 2017), which included in the CLT art. 477-A, according to which there is no need for prior union authorization, nor for the conclusion of a collective agreement or collective bargaining agreement to effect collective dismissals.

In the vote of the Rapporteur Minister, the premise that “legality is the core of the Democratic Rule of Law, the basis of gregarious life” was considered, which requires for its realization “a normative act emanating from the bodies of popular representation, prepared in accordance with the process legislative process described in the Constitution “, so that the treatment given to the topic” must consider the constitutional and legal guidelines, to give security to the relations “.

It was understood, in this way, that the requirement of the negotiating instrument is unreasonable, considering that the initiative to terminate the employment contract (art. 477, CLT) is a unilateral act that does not depend on the agreement of the opposing party and the union; collective dismissal is the simultaneous termination of a large number of employment contracts; and the standardization of the theme by art. 477-A, CLT; concluding that “there is no prohibition or condition for collective dismissal”.

Minister Alexandre de Moraes, in his vote, explained that art. 477-A, CLT reinforced the guidelines of art. 7, I, CF / 1988 and art. 10, ADCT that did not impose any prior requirement for unmotivated dismissal, nor any distinction as to whether it is an individual or collective dismissal, ensuring the employer’s potestative right to effect unmotivated dismissals.

In this sense, the “supremacy of legality” was also emphasized as a quality of the Constitutional State, in such a way that there is no legislative void, unmatched by the normative power of the Labor Court, that is, it is inappropriate to give interpretation to the constitutional norms, being the Constitution expressed in its terms.

Thus, Minister Alexandre de Moraes, adhering to the thesis proposed by the Rapporteur Minister, stated that “it is not feasible to condition the effectiveness of the dismissals to the conclusion of collective bargaining, agreement or convention”, because it is an obligation that is not foreseen in the legal system, lacking constitutional and legal support. In addition, it causes legal uncertainty and puts the survival of business activity at risk.

Wilson Sales Belchior