Marina Junqueira de Freitas
Lawyer at Marcos Martins Advogados
This article seeks to analyze the current position of the judiciary, especially the Federal Supreme Court and the Superior Labor Court, with regard to the possibility of rights conferred through collective bargaining rules overriding those laid down in rules drawn up by the state.
Recently, the STF, in a decision handed down in an Extraordinary Appeal (RE 895.759), broke new ground by overturning the TST’s decision and ruling that a clause in a collective bargaining agreement that excluded the payment of hours in itinere was valid, since this exclusion was made in view of the receipt of other benefits that were more financially advantageous to the employees.
In this sense, there has been a paradigm shift in the way the TST has understood things, since this Court does not accept the reduction of rights that are regulated in the CLT or in the Federal Constitution, and consequently the negotiation of workers’ rights through an agreement.
That said, this article sets out to present the thesis adopted by the two courts in order to verify the positive points of each and, consequently, whether workers could benefit from the overlapping of the negotiated with the legislated.
In view of the decision handed down in September this year by Supreme Court Justice Teori Zavascki (RE 895-759), who upheld an Extraordinary Appeal to consider as valid a collective bargaining agreement clause that excluded the payment of hours in intinere, as well as the possible labor reform to be implemented in the country, the discussion on “legislated vs. negotiated” is an important one.
This is because this issue brings up the possibility of flexibilization of labor rights, a point that must be observed with great caution, since labor guarantees, in order to be removed or suppressed, need intense discussion as well as acceptance by society and the political sectors.
In order to carry out this analysis, this article sought to examine the current position of the STF, which, through the judgment of an Extraordinary Appeal, upheld the decision of the Superior Labor Court.
The STF’s understanding was to allow free negotiation by trade unions and consequently greater implementation of the wishes of the professional categories. The TST, on the other hand, takes the view that negotiations cannot affect labor rights guaranteed by law.
That said, there is a clash between the negotiated and the legislated, and the specific case and the search for the best condition for the worker must be observed.
In labor justice, the unions’ ability to produce rules is carried out through collective agreements and conventions. This collective activity is in the field of what can be “negotiated”, alongside state legal norms, which, according to scholars, make up what is known as “legislated”.
What is negotiated is made up of Collective Bargaining Agreements or Collective Bargaining Conventions. The agreements are signed between the unions of the categories and one or more companies and will only apply to the employees of a particular company that signed the agreement, while the conventions are established between the workers’ unions and the employers’ union and apply to all employment contracts signed between workers and companies.
Legislated rights, on the other hand, consist mainly of the labor rights set out in Articles 7 to 11 of the 1988 Federal Constitution (CF/88) and the Consolidation of Labor Laws (CLT).
There is disagreement in doctrine and case law about the benefits of free negotiation between social agents. Those who see such benefits seek the maximum expression of freedom of negotiation between social agents, which should prevail over laws instituted by the state.
On the other hand, there are those who see the suppression of legal norms as a detriment to labor guarantees, advocating for what is legislated.
In view of this duality, Mauricio Godinho Delgado, Minister of the Superior Labor Court and renowned Brazilian doctrinaire, in his book Introduction to Labor Law, seeks to harmonize legal creativity with the rules created by the legislative power, thus creating the principle of negotiated sectoral adequacy, which deals with the possibilities and legal limits of collective bargaining.
This is the interrelationship between collective law and individual law, when a harmonization is sought between the rules created by the labour community and those created by the legislature.
Through the principle of negotiated sectoral adequacy:
autonomous collective law rules built to affect a certain economic-professional community can prevail over the general heteronomous labor law standard as long as certain objectively established criteria are respected. These authorizing criteria are twofold: a) when the autonomous collective standards implement a sectoral standard of rights that is higher than the general standard derived from the applicable heteronomous legislation; b) when the autonomous collective standards negotiate sectoral labor rights that are only relatively unavailable (and not absolutely unavailable). (GODINHO, 1999, p. 162-163)[1].
When the first criterion is applied, it means that collective standards have raised the sectoral level of labor rights, at which point they will be applied to the detriment of the legislated standard. This criterion corresponds to the principle of the most favorable norm, since it is established that those collective norms that are more beneficial to the standard established by the legal norm will be applied.
The second criterion, on the other hand, is related to the theory of flexibilization, since collective rules may prevail over laws when it comes to rights of relative availability, i.e. those rights in which there is a margin for negotiation.
There is currently a great deal of discussion about labor rights, in view of the country’s new political scenario. In the midst of this controversy, Justice Teori Zavascki of the Federal Supreme Court (STF) decided that a collective agreement signed between a union and a company should prevail over a rule in the Consolidation of Labor Laws (CLT).
The specific case discussed in RE 895-759 concerns a lawsuit between Usina Central Olho D’agua S/A and the Rural Workers’ Unions of six municipalities that negotiated the suppression of payments for hours in itinere.
This right must be granted by the employer when there is no regular public transport available to the employer for the home-work journey. This amount is provided for in article 58, paragraph 2 of the CLT, which states:
the time spent by the employee to and from the workplace, by any means of transportation, will not be counted in the working day, except when, in the case of a place that is difficult to access or not served by public transportation, the employer provides the transportation.
What was agreed between the company and the union was that in exchange for the payment of the aforementioned sum, the rural workers would receive a basic food basket during the off-season, life and accident insurance in addition to the payment of the annual allowance to workers earning more than two minimum wages a month, payment of family allowance in excess of the legal limit, the supply of energy replenishers and the adoption of a progressive production table in addition to that provided for in the Collective Agreement.
These measures were taken because the calculation of hours in itinere was becoming very difficult to carry out, given that some of the workers live 20 minutes from work and others 4 hours away.
In the STF’s decision on this issue, published on (13/9), the Supreme Court Justice overturned a ruling by the Superior Labor Court (TST) that had disregarded the collective agreement, since the labor court understood that the terms set out in such an agreement went against the rules laid down in labor legislation, as well as undermining the constitutional precepts that provide protection for minimum labor rights.
Furthermore, the TST’s understanding is that rights guaranteed through collective bargaining cannot cover rights already guaranteed by law. In this sense, since the right that was negotiated by the collective bargaining agreement in question was that of hours in itinere, a right that has already been consolidated by the CLT in its article 58, the suppression of its payment would not be subject to negotiation, precisely because it is legally provided for.
It’s important to note that the TST has never allowed full suppression of hours in itinere, only authorizing collective bargaining on 50% of the amount.
The president of Anamatra (National Association of Labor Judges) Germano Siqueira believes that, as a rule, what is negotiated should not take precedence over what is legislated, only accepting this hypothesis when such a measure is used to advance labor rights.
According to him, as this is a monocratic decision, the Labor Courts are not yet obliged to follow the Supreme Court’s case law. Unless the case is decided in general repercussion, after it has become final, and becomes a binding precedent.
On the other hand, those who defend the possibility of the negotiated over the legislated in this case, find in the advantages offered in exchange for the suppression of the hours in itinere, the justification for reducing a right granted by the CLT.
On the other hand, there is no evidence that the collective bargaining agreement in question went beyond the limits of reasonableness, since, although it limited a legally provided right, it granted other advantages in its place, through a valid expression of will by the union. (STF – judgment of RE 895.759, vote of Justice Teori Zavascki)
Furthermore, the defenders of this thesis claim that decisions like this will lead to a consequent maturing of trade unions.
This is a very strong argument for labor law, since by strengthening collective bargaining, workers will be more aware when electing their representatives, since what is decided through collective bargaining will have a greater impact on their lives, and a greater relationship with their daily labor issues.
Furthermore, the role played by the STF is to recognize that certain sums can be negotiated, however, the analysis of the advantages arising from the negotiation is the responsibility of the union. This is why it is imperative for workers to develop maturity and discernment in order to choose their representatives well.
After analyzing the scope of collective bargaining in the current labor law landscape and observing the principle of negotiated sectoral adequacy, I believe that the question of what is legislated over what is negotiated must be observed in the specific case, when the right being discussed and the possibility of it being negotiated must be taken into account.
In the case of a specific situation, in which the right that is subject to suppression does not present concrete and practical advantages in the worker’s day-to-day life, another set of measures or rights provided for through collective bargaining may prevail.
This overlapping of the negotiated over the legislated must be closely monitored by the unions, as well as by the workers themselves, who, in this scenario, would have a role of control and oversight, which is essential if the result of this harmonization of rules is always to be more beneficial to the worker in a specific situation.
That said, the STF’s recent decision opens up room for this discussion, proving to be positive in the sense that, when those rights guaranteed by the Constitution do not prove to be advantageous for the employee in a given situation, they can be suppressed, but only in those cases where there are other more urgent guarantees that will impact workers’ lives more effectively and positively, always with a view to improving the working situation of individuals.
[1] DELGADO, Mauricio Godinho. Introdução ao direito do trabalho: relações de trabalho e relação de emprego. 2. ed. rev. atual. São Paulo: LTr, 1999.
