Jayme Petra de Mello Neto
Lawyer at Marcos Martins Advogados
Although the discussion is not recent, it was on October 10 that Sub-section 1 Specialized in Individual Disputes (SDI-1) of the Superior Labor Court decided, by a majority vote, to suspend all cases, in all instances, that question the validity of a collective agreement that reduces labor rights not guaranteed by the Federal Constitution until the Federal Supreme Court decides on the matter, which is the subject of general repercussion, which still has no date set for it to happen.
On June 28 of this year, Justice Gilmar Mendes of the Federal Supreme Court, examining an extraordinary appeal that discussed the issue of hours in itinere of a mining company that provided transportation for its employees, concluded that there is a constitutional issue with general repercussion in normative clauses that reduce or restrict labor rights not provided for in the Magna Carta, ordering the national suspension of all cases dealing with the issue.
The Supreme Court’s decision will decide one of the great controversies brought about by the Labor Reform in force since 2017, which is the prevalence of collective and individual agreements (between employer and employee) over legislation, whose general repercussion has been recognized.
In general terms, general repercussion, i.e. that it deals with issues considered relevant from an economic, political, social or legal point of view, and that go beyond the subjective interests of the case, is one of the requirements for admissibility of extraordinary appeals before the Federal Supreme Court imposed by Constitutional Amendment 45 of 2004, and its purpose is to ensure uniform decisions, whether of a material or procedural nature, throughout the country, preserving essential legal certainty.
As long as this issue is not decided by the Supreme Court, labor cases on the subject will remain at a standstill at the TST, waiting first for a decision on the merits to be made and then granted or denied, which will paralyze a significant number of labor cases across the country.
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