STF decides on the validity of collective agreement that suppresses labor law

The Federal Supreme Court (STF) decided this Thursday (2) for the validity of collective agreements and conventions that reduce or limit workers’ rights, provided that what is guaranteed by the Constitution is respected.

The case is of general repercussion and will apply to cases dealing with the same issue. The action was reported by minister Gilmar Mendes.

In 2019, the minister had determined the national suspension of all actions that discussed the validity of a collective labor rule that limited or restricted labor rights that were not constitutionally guaranteed.

In his vote, Gilmar said that the constituent’s option to privilege the normative force of collective bargaining agreements and conventions was “clear”.

“The strong labor market, able to generate more jobs and consequently preserve the benefits negotiated with workers, is based on the maintenance of a framework of normality and stability”, said the minister.

“The repeated failure to comply with the agreements causes discredit as an instrument for resolving collective conflicts.”

The specific case judged by the court discussed the appeal of a mining company that questioned the decision of the TST (Superior Labor Court) against an agreement not to pay overtime “in itinere” – that is, during the journey of the employee from your home to work.

The decision pointed out that the mining company was in a place of difficult access and the public transport schedule was incompatible with the working day. The mining company argued to the STF that the court exceeded the constitutional principle of the prevalence of collective bargaining.

In addition to Gilmar, six other ministers were in favor of the mining company’s request: André Mendonça, Kassio Nunes Marques, Alexandre de Moraes, Luís Roberto Barroso, Cármen Lúcia and Dias Toffoli.

Rosa Weber and Edson Fachin voted against. In his vote, Fachin said that the court’s decision “may generate an increase in litigation in light of claims that could bring the debate back to the STF”.

The president of the Supreme, Luiz Fux, and minister Ricardo Lewandowski were not present at the session.

In addition to the majority of ministers, the Attorney General of the Republic, Augusto Aras, also spoke out in favor of the prevalence of agreements on labor legislation. He affirmed, however, that these negotiations have to happen with transparency and loyalty in relation to those represented.

The former president of the OAB Marcus Vinícius Furtado Coêlho, who represented the CNI (National Confederation of Industry) in a demonstration to the STF, considered the decision “rational and balanced”, because “it encourages agreement as a civilized way to overcome conflicts. The Constitution prevailed to the extent that it provides for collective agreement as a fundamental social right”.