The STF has recently published the judgment of some cases with considerable thematic relevance for the field of labor law, namely, the decision on the ultra-activeness of the collective agreement, on the validity of the negotiation of the collective agreement and agreements and, more recently, on the need of prior negotiation when it comes to mass dismissal.
In the first judgment mentioned above, delivered on May 27 of this year, the Supreme Court ruled unconstitutional the understanding of the Superior Labor Court (TST) that maintains the validity of rights established in collective clauses with an expired term (principle of ultraactivity) until that a new agreement or new collective agreement is signed.
According to the principle of ultraactivity, once the term of validity of the agreed clauses has expired, and without being reaffirmed in a new collective agreement, they are incorporated into current or new individual employment contracts, until another rule decides on labor law.
In the judgment, the majority of Justices considered unconstitutional the interpretations and judicial decisions that understand that article 114, paragraph 2, of the Federal Constitution, authorizes the application of the principle of ultra-activity of norms of collective agreements and conventions.
Furthermore, they stated that a judgment different from the one above also offends the principle of legal certainty, since, according to article 613, item II, of the Consolidation of Labor Laws (CLT), collective agreements and conventions must contain, mandatorily, their term, which may not exceed two years.
It should be noted that such a judgment was long awaited by legal practitioners. In our view, in practice, the aforementioned decision may judicialize numerous agreements or collective bargaining agreements, especially when consensus is not reached by the base date of the collective bargaining agreement, given that the rights and duties contained in the collective agreements will be uncovered. of legal justification, if the expiration date of the conventions and agreements is exceeded.
Another impactful judgment recently handed down by the STF was the one that took place on June 1, 2022, an opportunity in which the ministers understood that collective labor agreements and conventions, which restricted or limited labor rights, are valid, as long as they are not rights provided for in the Federal Constitution, that is, rights unavailable to employees.
The case analyzed by the STF was a negotiation related to in itinere hours, in a period prior to the labor reform. In the situation of the case, the Ministers understood that it is possible to negotiate available rights, as is the case of the aforementioned hours.
Regarding the aforementioned understanding, we understand that the STF correctly evaluated the issue and understood in order to privilege the freedom to negotiate working conditions according to collective autonomy of will, guaranteeing the minimum civilizational level that we have already reached. Furthermore, we assess that the aforementioned judgment once again validates the Labor Reform, which came into force in November 2017, given that the legislation itself already provides for which matters may or may not be adjusted through collective bargaining, pursuant to arts. . 611-A and 611-B.
Finally, the most recent decision handed down by the Supreme Court and which directly impacts the field of labor law, apart from the decision handed down on June 8 of the current year, which understood that prior union intervention is an essential procedural requirement for the dismissal in mass of workers. In this judgment, the Ministers who voted, in majority, understood by the divergence of the vote given by the rapporteur, that collective dismissals do not necessarily require a prior authorization by the union entity or the conclusion of a convention or collective agreement, but it is necessary that a dialogue is opened with the categories so that the collective dismissal is valid.
In the understanding of the Ministers, the Federal Constitution aims at dialogue and the preservation of jobs, hence the mandatory dialogue with the union, in the event of dismissal.
Regarding the above judgment, we understand that the position taken by the Constitutional Court failed to consider the economic freedom of employers, as well as the principle of free enterprise. Furthermore, we know that, in most cases, when a large group of employees is laid off, it is not because the employer simply no longer wants to employ those certain employees, but rather is no longer able to afford those salaries and taxes in reason of some impacting fact that occurred in the company's scenario.
In this sense, such imposition, even if it involves dialogue with the union, directly violates the above principles and even the employer's directive power.
Finally, these are the recent judgments handed down by the Supreme Court, and although the decision of these cases promotes effects only between the parties to the process, the thesis established in the general repercussion demonstrates the inclination of the STF to the theses established herein.
Credits: Labor Team
