Heloisa de Alencar
Lawyer at Marcos Martins Advogados
With the enactment of Law 13.467/17, which amended several articles of the CLT, known as the Labor Reform, article 611-A was inserted into the CLT, which brings a list of provisions in which collective bargaining agreements will take precedence over the law.
The Collective Bargaining Agreement (CBA) is nothing more than an agreement signed between a particular company and the workers’ union. The Collective Bargaining Agreement (CBA), on the other hand, is an agreement between an employer’s union and the workers’ union.
This change enforced the provisions of Article 7, XXVI of the Federal Constitution, which states that collective bargaining agreements must be recognized, i.e. what is previously agreed between union and employee or between unions will be applied throughout the contractual employment period.
However, in the same way that article 611-A of the CLT sets out the subjects that may be modified by the ACTs and CCTs, article 611-B of the CLT, also inserted by law 13.467-17, sets out the subjects that may not in any way be suppressed or reduced, thus seeking to limit the freedom of collective provisions.
Despite all these changes already being applied by the majority of Brazilian magistrates, the International Organization (ILO) does not look kindly on them, and has expressed its opposition to the Labor Reform, in the sense that it is in breach of Convention 98 approved by the ILO in 1949 and ratified by Brazil in 1952.
Convention 98 lays down rules on the protection of rights such as participation in collective bargaining and trade union membership, and Brazil is on the list of 24 cases considered to be the main violations of its conventions in the world.
An opinion was issued by the ILO recommending the re-examination of some parts of Law 13.467/17 that deal precisely with the prevalence of what is negotiated over what is legislated, with the aim of making the legislation compatible with the Convention.
This is because the return and protection of labor rights has been questioned, in view of the inclusion of the Principle of Minimal Intervention in labor matters, without the state’s due support for the hyposufficient in this relationship.
This principle runs counter to so many other fundamental principles of labor law.
The issue is that the protection that used to predominantly belong to the employee has been transferred to the employer, with the creation of new forms of employment contracts, such as intermittent work, which often only aim to increase employers’ profits.
The fact is that with the prevalence of collective rules over the law, there was a suppression of the Principle of the Most Favorable Rule or most beneficial to the worker, resulting in the exclusion of the most beneficial rule, which until then was a fundamental guarantee that prohibited the retrocession of rights acquired by the worker.
Once the wording of article 611-A was added to the CLT, it allowed for the reduction of rights and benefits protected by law, resulting in the loss of the role of supplementary source of law that collective agreements and conventions used to play, currently assuming the role of regulators of economic interests and objectives.
In this sense, the enunciations that deal with working hours will prevail over the law, and this is just an example, given the generic nature of the flexibilization hypotheses set out in article 611-A.
