On July 13, 2017, Law No. 13,467 of 2017, which amends the Consolidation of Labor Laws, among other laws, was sanctioned by the President of the Republic.
Much has been said on the subject. Some cite the “evils” found in the reform, while others mention the progress Brazil will make after it comes into force.
Among the many controversial points of this law is the issue of negotiated vs. legislated. This is because, with the labor reform, collective bargaining was given greater power, with the possibility of suppressing “some” workers’ rights.
With the approval of the reform, art. 611-A was included, which establishes that the collective agreement takes precedence over the law when it provides for: a) I – an agreement on working hours, subject to constitutional limits; b) an annual bank of hours; c) an intra-day break, respecting the minimum limit of thirty minutes for working hours of more than six hours; d) adherence to the Employment Insurance Program (PSE), referred to in Law 13. 189, of November 19, 2015; e) plan of positions, salaries and functions compatible with the employee’s personal condition, as well as identification of the positions that fall under functions of trust; f) company regulations; g) workers’ representative at the workplace; h) teleworking, on-call work and intermittent work; i) remuneration for productivity, including tips received by the employee, and remuneration for individual performance; j) way of recording working hours; k) changing the day of a holiday; l) classification of the degree of unhealthiness; m) extension of working hours in unhealthy environments, without prior permission from the competent authorities of the Ministry of Labor; n) incentive prizes in goods or services, possibly granted in incentive programs; o) participation in the company’s profits or results;
The same article lists a list of thirty topics that cannot be the subject of negotiation, as well as that the lack of counterparts in the negotiation does not lead to its nullity because it does not characterize a defect in the legal deal.
The great controversy will always be the hyposufficiency of the worker vis-à-vis capital, to the extent that employees will always submit to the determinations of employers in order to keep their jobs.
However, even from an extremely optimistic perspective, some would say naïve, it is certain that there was a need to change the way employment relationships are handled, especially those that have long since left behind the existence of a hyposufficient party.
The new legislation makes employment relationships more dynamic, eliminating edges that had been overloading the judiciary for a long time, without neglecting safety, constitutional guarantees and the expression of will of the interested parties themselves – employee and employer.
It is important to note that despite the possibility of negotiating these issues, collective bargaining agreements can only be negotiated with the unions of the categories, which, according to the new legislation, must participate as necessary co-litigants in actions aimed at annulling the normative clauses to which they are signatories.
In this way, what is expected with the reform coming into force, especially with regard to negotiated vs. legislated, is not only the dynamization of employment relations, but also the maturing of the working class, with more active participation in these negotiations, with a view to greater and effective supervision of the unions so that they are beneficial not only to companies, but also to employees.
Marcos Martins Advogados is always attentive to changes in the law and to case law in labor matters, maintaining its commitment to excellence in the provision of legal services to its clients by providing appropriate responses that are perfectly in line with the current interpretation of the law.
