Union reform proposal legalizes company strikes and reduces power of the Labor Court

A union reform proposal ordered by the Jair Bolsonaro (PL) government legalizes the lockout and limits the power of the Labor Court. The changes alter the structure of unionism in Brazil.

The idea, according to a text formulated by experts, is to promote broad freedom and strengthen negotiation, in addition to authorizing union by company. Unionists criticize and see the organizations emptying.

Today, lockout —a kind of strike by companies— is prohibited. Through the instrument, instead of the workers, it is the entrepreneurs who deliberately interrupt the activities.

In addition, the Labor Court, through the so-called normative power, puts an end to conflicts, when requested by both parties, and can define rights, such as salary readjustments, bonuses and vouchers, which would be prohibited without negotiation. The magistrate could only declare whether the strike or the lockout is abusive.

For union members, the lockout can be used as a pressure tool. According to them, there are suspicions, for example, that businessmen in the transport sector encourage stoppages of drivers in order to obtain gains, either with more public subsidy or with a readjustment of the price charged to the passenger in the fares.

“It will institutionalize the lobby for contract readjustment”, says Miguel Torres, president of Força Sindical.

During the Michel Temer (MDB) government, in 2018, there was a suspicion of a lockout in the truck drivers’ strike. At the time, the country went through an intense shortage crisis.

The suggestions were taken to the Ministry of Labor and Social Security. The material was produced by the Gaet (Grupo de Altos Estudios do Trabalho), at the request of the Ministry, to also subsidize a labor reform.

This Saturday (4), the sheet showed that among the suggestions are the release of work on Sundays and the prohibition of recognition of employment relationship between service providers and applications.

The folder, in the document, says that the measures do not represent the government’s position. The ministry says it will act in dialogue with society.

The subgroup coordinated by FEA-USP professor Hélio Zylberstajn debates union freedom. “By the way, in this new model it is recommended to admit the lockout”, says the report.

Through a PEC (proposed amendment to the Constitution), article 9 would provide that “the rights to strike and lockout are guaranteed, it being up to workers and companies to decide on the interests to be defended and the opportunity to exercise them “. Today, the Constitution admits the strike.

Zylberstajn afirma to sheet that each detail of the report should be evaluated in the set of suggestions made. “The proposal, if adopted, would give space for self-regulation, that is, full negotiation”, he says.

A member of the commission, the lawyer and professor of labor law at USP Nelson Mannrich claims that “arms parity” is being sought. “If the employee has a weapon [greve], the employer has the right to have the same weapon [locaute].”

According to him, this is not the central axis of the proposal. “Not having union freedom, you can have everything, you can have lockout, you can not have it. This is all perfumery.”

According to Mannrich, regarding the claims of businessmen, it would be necessary to regulate by means of an infra-constitutional law. “There is no absolute right,” he says.

In the legal field, there is resistance. Professor of labor law at USP and partner at the Siqueira Castro law firm, Otavio Pinto e Silva criticizes the proposal. “Instead of promoting collective bargaining, the lockout ends up suffocating it.”

According to Silva, the strike, as the last instrument, seeks to meet a demand, when negotiation is frustrated. “But what purpose would the lockout come to?”

For specialists, the constitutionality of the rule may be questioned if it goes forward.

Ricardo Patah, president of UGT (General Union of Workers), says that the lockout will have the effect of satisfying business interests. “It doesn’t come from the worker’s interest, but from very strong political pressure”, he says.

Zylberstajn’s subgroup also proposes changes to Article 114 of the Constitution. The provision deals with jurisdiction —that is, when and on what a magistrate can decide—, prohibiting normative power.

Today, workers go to court when they feel harmed by the employer and have a response through a court decision.

According to the proposal, the labor sector could prosecute and judge “actions that involve abusiveness in the exercise of the right to strike and lockout, being prohibited the stipulation of social and economic clauses”.

This suggestion dialogues with the PEC suggested by the commission coordinated by Minister Ives Gandra da Silva Martins Filho, former president of the TST (Superior Labor Court).​

Gandra’s group argues that employers and employees may, in collective conflict, elect a magistrate or a collegiate court body as arbitrator. The commission does not defend the lockout.

The proposal says that “it will only be up to the Labor Court to assess its legality [da greve] and adopt the appropriate legal measures so that the minimum percentages of active workers are respected, to meet the urgent needs of the population”.

TO sheet Gandra explains that, with the change, there will only be arbitration. “The Labor Court itself would be the arbitrator, in common agreement between the parties. The judge is chosen. There are people who have the gift of conciliation, there are people who do not”, he says. What the referee decides, according to Gandra, applies as a rule.

According to Guilherme Feliciano, judge and professor of labor law at USP, there is a “fixation of the ultraliberals” on the subject. “They extinguish regulatory power while weakening unions,” he says.

For him, despite the authoritarian origin of the normative power, the 2004 reform of the Judiciary made it democratic. “Right now, imagining that arbitration alone resolves collective conflicts is, at the very least, foolhardy.”

Anamatra (National Association of Labor Justice Magistrates) is also opposed to the measure. For the organization’s president, Luiz Antonio Colussi, the tool pacifies collective relations.

“The normative power is an important instrument, imposing on the parties the appropriate solution to collective disputes. Today, the Labor Court manages to resolve them”, says the judge.

The report also proposes the end of so-called union unity — that is, a single union per category on a territorial basis. Membership of more than one entity would also be permitted. Registration would only be done at a civil registry office.

The proposed union by companies is attacked by Colussi. “The initial idea of ​​negotiating by company weakens the power of the category, and the company is going to negotiate with a smaller group”, says the magistrate. For Patah, from UGT, “workers can be hostages to the company’s owners”.

In view of the suggestions, the general secretary of Força Sindical, João Carlos Gonçalves, criticizes the composition of the Gaet. “The government only proposed specialists linked to businessmen or with business opinions. [Não há] No workers’ representatives,” he says.

For him, the Bolsonaro administration takes advantage of the fragility of workers due to unemployment. “The government makes it difficult to finance union entities, reducing their mobilization power.”

There is no deadline for the evaluation of the report to be completed and the proposals presented.​

Main proposals

• Free union organization, registered in a civil registry, without interference and intervention by the government
• Free union organization in any degree or scope of representation, with no mandatory link to economic activities, occupations, trades, professions and territorial bases (today only a single union can be used on a territorial basis, and the minimum base is the municipality)
• The most representative professional union engages in collective bargaining in the interest of all employees in the negotiation unit, and may admit the joint action of the least representative
• Non-members have the right to participate and vote in meetings relating to collective bargaining
• Employer unions represent only members and may admit non-members in collective bargaining
• The imposition of contributions of any kind to non-members is prohibited.
• It can charge business contributions from members or not to fund collective bargaining; value is defined at the general meeting of the most representative union and cannot exceed the annual value of the membership contribution
• The right to join one or more unions guaranteed
• End of the normative power of the Labor Court, prohibiting magistrates from stipulating social and economic clauses