STF decides that collective rule that restricts labor law is constitutional. The Court observed, however, that the reduction of rights by Collective Agreements or Conventions must respect the guarantees constitutionally guaranteed to workers.

The Federal Supreme Court decided that Collective Bargaining Agreements or Agreements that limit or suppress labor rights are valid, provided that a minimum civilizing level is ensured to the worker. By majority vote, the collegiate granted the Extraordinary Appeal with Agravo (ARE) 1121633, with recognized general repercussion (Theme 1.046).

In the specific case, the decision handed down by the Superior Labor Court was questioned, which had ruled out the application of a collective rule that provided for the provision, by the employing company, of transportation for employees to travel to work and the suppression of payment for travel time. The reason for the decision was the fact that the company is located in a place of difficult access and that the public transport schedule is incompatible with the working day.

In the appeal, the employing company argued that, by denying validity to the clause, the TST would have exceeded the constitutional principle of the prevalence of collective bargaining.

In the trial, the vote of Justice Gilmar Mendes (rapporteur) prevailed in favor of the appeal. He stated that the jurisprudence of the STF recognizes the validity of a collective labor agreement or convention that provides for the reduction of labor rights.

The minister considered, however, that this suppression or reduction must, in any case, respect the unavailable rights, guaranteed constitutionally.

As a rule, the clauses cannot violate a minimum civilizing level, composed, in general terms, by the constitutional norms, by the norms of international treaties and conventions incorporated into Brazilian law and by the norms that, even infra-constitutional, ensure minimum guarantees of citizenship to workers.

about the hours on the road, the subject of the case under debate, the minister stated that, according to the jurisprudence of the STF, the issue is directly linked to salary and working hours, themes in relation to which the Constitution authorizes the elaboration of collective labor norms (item XIII and XIV of article 7 of the Federal Constitution).

He was accompanied by ministers André Mendonça, Nunes Marques, Alexandre de Moraes, Luís Roberto Barroso and Dias Toffoli and by minister Cármen Lúcia. Minister Edson Fachin and Minister Rosa Weber were defeated, who voted for the dismissal of the appeal. In Fachin's assessment, considering that the discussion of the case involves the right to overtime (on the road), provided for in article 7, items XIII and XVI, of the Constitution, it is inadmissible for collective bargaining to override the will of the constituent legislator.

Thus, the established thesis was as follows: “Collective agreements and conventions are constitutional which, when considering the negotiated sectoral adequacy, agree on limitations or departures from labor rights, regardless of the specified explanation of compensatory advantages, provided that absolutely unavailable rights are respected”. (1)

By: Douglas Moraes de Freitas

CPDMA Team - Labor

(1) Portal of the Federal Supreme Court