The economic effects of MP 927 and legal certainty

The discussion on Provisional Measure No. 927 is based on the content of the principle of legal certainty and the recognition of the emergency situation whose economic effects the legal text sought to address.

The discussion on Provisional Measure No. 927 is based on the content of the principle of legal certainty and the recognition of the emergency situation whose economic effects the legal text sought to address.

The protection of the perfect legal act is qualified as a fundamental right by the Constitution, guiding the interpretation and application of the law, as is also observed in LINDB. Society therefore expects stability and predictability, which is achieved with the necessary respect for the acts carried out under the auspices of the MP.

It is opportune to remember, keeping in mind the proportions, the stir caused by intertemporal law when Law No. 13,467 / 2017 was enacted, giving rise to the issue of Normative Instruction by the TST. In that one, a certain orientation was adopted to harmonize the normative changes with the content of legal security.

The analogy becomes feasible in the face of the reality exposed by the accelerated dissemination of Covid-19. Pesquisa Pulso Empresa, published by IBGE, found in the first half of June 2020 that 70.0% of the companies in operation reported the negative effect caused by the pandemic. Even so, 61.2% maintained the number of employees. It should also be noted that 35.6% of the companies anticipated employee vacations and 51.9% of the companies postponed the payment of taxes [i].

This is the scenario before which Minister Marco Aurélio, in the judgment of the ADIs filed against the MP, understood that this “aimed to meet an emergency situation and preserve jobs, the source of livelihood for workers who were not in the informal economy” [ii] . Minister Gilmar Mendes, in an article dealing with the jurisprudence of the crisis, asserted that “the performance of the Supreme Federal Court in this context unequivocally demands a hermeneutical opening of the constitutional jurisdiction to the understanding and shaping of the economic and social reality experienced” [iii].

The creation of legal instruments, which allowed entrepreneurs to respond quickly to the crisis caused by the pandemic in order to preserve jobs, such as the preponderance given to the agreement and emergency measures that did not depend on the consent of third parties, provided beneficial effects for society , reinforcing incentives for maintaining the economy and the business environment in Brazil.

However, once the legislative process has been overcome without being converted into law, the risks of closing companies, reducing the number of job openings and judicializing the rules associated with continued aspects of the employment relationship, such as, for example, deadline for workday compensation through hour banks, alteration of the face-to-face work regime for teleworking and use of communication applications and programs outside the normal working day. This is intensified based on the prognosis of a “second wave” of community transmission of the virus and eventual determination to close commercial establishments.

For companies, therefore, it is essential to reorganize short-term strategic planning to make decisions that adjust the reality of the business to the current rules, with attention to the agreements entered into, payment of FGTS deferred due to the MP and formalities inherent to the anticipation of individual vacations. .

* Wilson Sales Belchior is a lawyer, partner at Rocha, Marinho E Sales Advogados and a federal advisor at OAB.

[i] Available at: https://covid19.ibge.gov.br/pulso-empresa/

[ii] Available at: http://www.stf.jus.br/portal/cms/verNoticiaDetalhe.asp?idConteudo=442355

[iii] Available at: https://www.conjur.com.br/2020-abr-11/observatorio-constitucional-jurisprudencia-crise-pensamento-possivel-caminhos-solucoes-constitucional

Source: O Estadão

https://politica.estadao.com.br/blogs/fausto-macedo/os-efeitos-economicos-da-mp-927-e-a-seguranca-juridica/