Employer needs to negotiate with union before mass dismissal, decides STF

The Federal Supreme Court (STF) decided this Wednesday (8), by majority, that it is mandatory that there is a negotiation with unions before the mass dismissal of workers.

The court reached this understanding, which will affect equivalent cases throughout the country, when judging a case in which Embraer questions the decision of the TST (Superior Labor Court).

The Supreme Court defined that “prior union intervention” in these dismissals is essential, but that this should not be confused with “prior authorization by the union entity or collective agreement”.

Although there were differences in relation to the writing of this thesis, ministers Edson Fachin, Alexandre de Moraes, Luís Roberto Barroso, Dias Toffoli, Cármen Lúcia, Ricardo Lewandowski and Rosa Weber understood that there is a need for these negotiations.

Kassio Nunes Marques and Gilmar Mendes disagreed and the president of the STF, Luiz Fux, and Minister André Mendonça did not participate in the trial.

The specific case that reached the Supreme Court, through an appeal, is related to the dismissal of more than 4,000 Embraer employees in 2009.

The Brazilian manufacturer and the company Eleb Equipamentos questioned the TST decision that established the need for collective bargaining in future cases. According to the labor court, in these future cases, “collective bargaining is essential for the mass dismissal of workers”.

The companies argued that this decision had assigned to the Labor Court the discipline of a matter that would have to be decided by means of a supplementary law. They also argued that the decision threatened the survival of firms in crisis and that it was contrary to free enterprise.

The case began to be judged last year by the Supreme Court, under the rapporteurship of Minister Marco Aurélio, who is currently retired. At the time, Marco Aurélio understood that this mass layoff did not require collective negotiation.

Minister Edson Fachin disagreed and considered prior collective bargaining mandatory for mass layoffs. At the time, Dias Toffoli asked for a view (more time for analysis) and the case was only retried this Wednesday.

Unions and entities had also manifested during the trial. The Metalworkers Union of São José dos Campos (SP) defended the need for collective bargaining, treated as a “civilizing advance” in the country.

The Attorney General of the Republic, Augusto Aras, also spoke in favor of these negotiations.

The decision of the STF establishes jurisprudence on the subject, which had been causing a legal back-and-forth in similar cases.

The CLT did not provide for a veto or release of dismissals without negotiation. This changed with the 2017 labor reform, which equated collective dismissal with individual dismissals, in which the employer does not need to negotiate or communicate with the category union.

But the change in legislation did not prevent further actions, proposed by labor prosecutors and unions.

Last year, the Labor Prosecutor’s Office had started lawsuits against the automaker Ford to prevent the company from making mass layoffs while it negotiated severance plans with unions. The company had announced the end of vehicle production in Brazil.