Cesar Peres Dulac Müller logo

CPDMA BLOG

Category:
Date: July 18, 2022
Posted by: CPDMA Team

STF decides that collective rule that restricts labor rights is constitutional

Illustrative image of industry workers to relate the decision of the STF, labor law and collective rule.

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

Return

Recent posts

Misuse of a trademark by a former partner can be recognized not only as unfair competition, but also as bad faith.

On February 14, the newspaper "Valor Econômico" published an article in which it was pointed out that the São Paulo Court of Justice had recognized unfair competition in the improper use of a trademark by a former partner. The article, however, does not give the number of the case in which it would be possible to analyze more details of the decision, but it does inform that the individuals had signed a [...]

Read more
The first sanctions applied by the National Agency for the Protection of Personal Data (ANPD) were a wake-up call for companies: the LGPD is a serious law and must be complied with.

The General Personal Data Protection Law - Law No. 13,709/18 (LGPD) was published in 2018 and came into force in 2020. This deadline was given to public and private legal entities (processing agents) that collect, store or process the personal data of individuals, in Brazil or abroad, in order to [...]

Read more
Business position on the recent STF decision that ruled that it is constitutional for trade unions to charge assistance contributions

Recently, the Federal Supreme Court (STF) unanimously ruled that unions can collect an assistance contribution, including from non-member employees, in ARE 1.18.459 (Topic 935 of the General Repercussion), as long as the worker is guaranteed the right to object, establishing the following thesis: "it is constitutional to establish, by agreement or [...]

Read more
The new chapter in the legal dispute involving the term "HELLES", registered as a 'trademark'.

Recalling the case... It all started at the beginning of 2019, when the brewery Fassbier gave extrajudicial notice to a series of breweries in Rio Grande do Sul for the alleged misuse of the term HELLES, claiming to have exclusive use of the expression, given that the word was registered as a trademark. Not satisfied with [...]

Read more
Suspension of labor executions against companies in the same economic group

In a recent decision, the STF suspended the processing of labor executions that discuss the inclusion, in the execution phase, of a company that is part of an economic group that did not participate in the knowledge process. In labor proceedings, when the execution phase is reached and the main debtor does not have enough assets to pay the debt, many [...]

Read more
STJ decides that the legal personality of a civil association can be disregarded, but limits liability to the directors

The 3rd Panel of the Superior Court of Justice (STJ) [1] dismissed a special appeal filed by the directors of a civil association, which had its legal personality disregarded in a case involving the improper use of a trademark. The Court, in a judgment drafted by Justice Marco Aurélio Belizze, held that the disregard of [...]

Read more
crossmenuchevron-down
en_USEnglish
linkedin Facebook pinterest youtube lol twitter Instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter Instagram