The slavery that inhabits us

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By JORGE LUIZ SOUTO MAIOR*

Labor claims are being criminalized by court decisions as a way to frighten even more the worker who dares to think about suing his former boss

For some time now, many have highlighted that, in Brazil, in view of its legacy of slavery, which has not yet been properly overcome, the exploitation of the working class does not occur only in the economic logic of extracting surplus value from salaried work, whose formation, in terms of relations social, is rooted not only in submission by necessity, but also in the violent process of a “discipline” imposed by the criminal legal structures of surveillance and punishment.

In Brazil, class exploitation does not satisfy the elites (ruling class), it is also necessary to subdue and humiliate workers and, above all, female workers, through various other forms of oppression, such as gender and race, in order to demonstrate, at every moment, that the small concessions conceived within the scope of economic rationality by which the need to stimulate, preserve and reproduce the labor force commodity is recognized is not capable of altering the subaltern anthropological “status” in which the class is circumscribed hardworking.

It is only from this point of view that it is possible to explain the fact that, in Brazil, rights historically conceived for the preservation and viability of the capitalist society model, such as limitation of working hours, minimum age for work, decent wages, protection against accidents at work, among others related to the organization of the mode of production and improvement of the social condition of male and female workers are, albeit in their limited form, seen as obstacles to economic development or as unjustified privileges of a few workers who manage to enter the labor market, when they are not the object of the perverted rhetoric by which employers present themselves as victims oppressed by the costs imposed by labor rights.

This is also why the organic intellectuals of the Brazilian business class, in various fields of activity, are always on duty to promote the emptying of the content of labor rights that, after a process of struggle, made possible as a side effect (not intended) of the regime democratic, are normalized. And when the emptying is not enough and a little effective improvement in working and living conditions is experienced by the working class, the ruling class reacts to impose explicit setbacks in the labor legal form, even going over, if necessary, the guaranteeing precepts of democracy and civil liberties that it defends so much for the development of its entrepreneurial activities, in order to make it clear that no generalized rise in the estate structure that characterizes Brazilian society will be admitted.

And the moment we live in is exactly this: the imposition of setbacks, which is not disguised and which, quite the contrary, is intended to be clear and even expressed with mockery and sarcasm. It is with this content and purpose that not only is it said, as it has always been done, that labor rights are responsible for the country's economic weakness, it is also spread that the workers who have rights and defend them are to blame by unemployment and the suffering of those who cannot find work, or even to the point of expressing that insertion policies and minimization of the effects of historically conceived exclusion and prejudice represent formulas of discrimination against men, whites and the rich.

The interesting thing is that the more free the conservative forces feel to manifest themselves, the more their worldview is revealed, laden with the marks of the slave society, characterized by the consideration of the worker as a thing, of the black as a human sub-race and of the woman as a subaltern and submissive element, to whom only the role of fulfilling the invisible and unpaid tasks destined for reproduction is reserved.

This is how, from aggression to aggression, the day arrived when debt slavery was reactivated and made the subject of judicial approval, and presented as if it were an innovative solution and, at the same time, an act of benevolence towards the debtor (a worker, of course).

The worker filed a labor claim claiming the recognition of the employment relationship and the receipt of the values ​​of the resulting rights, but his claim was dismissed and, due to the application (or misapplication) of the terms of Law n. 13.467 / 17, of the labor “reform”, he was condemned to pay attorney fees of the attorney of the opposing party, in the amount of BRL 9.738,62 (on 17/04/19), even though he was a beneficiary of free justice.

The sentence, however, established that the fees in question would be “under a suspensive condition of enforceability and can only be enforced if, in the two years following the final and unappealable decision that certified them, the creditor demonstrates that the situation of lack of resources that justified the granting of gratuity”. On appeal, the Court upheld the decision. Once the execution started and without any indication of the assets of the debtor/worker, the suspension of the process was determined for two years, but the creditors requested that a conciliation hearing be held and this was done.

What came next is best expressed by the reproduction of the exact terms contained in the minutes of the hearing produced in the case file 0001007-68.2018.5.17.0011, of the 11th Labor Court of Vitória/ES, on June 25, 2020, not least because its publicity was authorized and encouraged by the protagonists of the act: “At 15:5, the audience opened, they went, by order of the Hon. Labor Judge, proclaimed the parties. The executed person is absent (….) Informs Dr. (….) that your customer is trying to join the courtroom but is experiencing problems with the link provided at this time. The parties reconciled through the provision of community services by the plaintiff, in charitable institutions that will be indicated by the executing office. Within 15 days, the office and the author will present a petition indicating the beneficiary institution and the days and times for the fulfillment of the obligation. The parties inform their e-mails for reciprocal contact: (….) As the petition comes to the case file, the case file is concluded for approval. The parties authorize the disclosure of this form of compliance with the sentence by the communication advisory of this Regional, as a way of encouraging the parties to seek alternative means of conciliation. Hearing closed at 21:XNUMX pm”.

Days later, on July 06, the agreement was ratified by dispatch: “Visas, etc. Since the parties are capable and duly assisted, the object is lawful and determined and not seeing any defect in the legal transaction, I approve the transaction instrumented in the petition ID 0a8d0c0, so that it has its legal effects. Considering the legal nature of the portions object of the transaction, there is no incidence of taxes. The parties are summoned. When the steps are completed, the deed is archived, with discharge”.

The claimant, who even, according to a final and unappealable decision, had the right not to be executed, unless it was proved by the creditor that the situation of insufficient resources that justified the granting of gratuity had ceased to exist, was submitted to a conciliation hearing. At the hearing, without the presence of the claimant, the unenforceable debt was transformed into the provision of services, not to the community, but to an assistance institution chosen by the creditor, who, thus, presents himself in the act and with the legal possession of the services claimant's future, which he may offer to whoever he wants (as long as it is a charitable institution), as a good Samaritan, a situation that also brings us to the modality of the “slave for gain”.

Rudimentary legal precepts were not met in the act, as the civil debt is not transferred to the person and there are no powers "ad judicia” implicit so that obligations that violate fundamental rights are imposed on the represented. Furthermore, if the “object” of the agreement was the provision of services on behalf of a welfare entity, and there being nothing in the labor law that differentiates these entities as employers, such services would imply, due to the legal and constitutional provisions , the formation of an employment relationship, with the consequent legal obligations. However, nothing was said about this, because the envisioned hypothesis was that of carrying out services as a penalty.

From so many waivers of rights in labor conciliations, under the false argument that before the judge there would be no defect of consent, it then reached the point where the “conciliation” was used to impose on the worker/performed an authentic work forced, as if his debt of a civil nature were comparable to the criminal conviction that incurs, as a substitute for the deprivation of liberty, the penalty of rendering services to the community, which is, even so, of debatable constitutionality, given its evident nature of forced labor and bearing in mind the provisions of art. 5, item XLVII, item “a”, of the Federal Constitution.

And it should be noted that this obligation was established by the Labor Court itself through the application of an unconstitutional precept (§ 4 of article 791-A of the CLT, introduced by the labor “reform” of 2017), which provides for the condemnation of workers even admittedly poor and beneficiaries of free justice and which, for the time being, remains in force (and applied by many) thanks to the inconceivable omission of the Federal Supreme Court, which does not guide ADI 5766).

Even if it is said that there was no obligation in the established “alternative solution”, the fact of even considering respect for labor rights in the execution of services already constitutes, in itself, forced labor, even if “spontaneously” carried out. And, concretely, in the face of the coercive sword and the vice determined by necessity, there is no room for free expression of will. Coercion, especially when institutionalized, is evident.

In any case, since there is no legality in the act of submitting to work for free to pay a debt, the will expressed in this sense, even if it was effectively free (and never will be), has no legal value and cannot, therefore, be corroborated.

The fact is that, translating it into other words, the filing of labor claims has remained criminalized, serving as an example as a way to frighten even more the worker who dares to think about suing his former boss, even because, like this “innovation” encourages, not even poverty will be the basis for exempting oneself from any responsibility for the debt owed to the defendant’s lawyer, if the lawsuit is lost, since, after all, he will always have to pay by working, through forced services, rhetorically envisioned as “ consensual”.

What is curious, but not so much so, given the Brazilian historical and cultural reality, is that in the 79 years of history of the Labor Court, where millions of labor claims with labor claims owed to the claimants, due to the insolvency or bankruptcy of the defendant, were filed without the actual receipt of the corresponding values ​​and no one ever had this innovative perception of proposing that defaulting businessmen would sweep the streets of the city.

The interesting thing, if anything interesting can be named in this story, is that every agreement contains a penal clause, envisioning the hypothesis of non-compliance by the debtor, and, in this case, such clause was not fixed, remaining established , merely, in the petition for agreement subsequently filed (without the signature of the claimant/debtor), that “In case of non-compliance with this Agreement, the execution will again run at the updated value”.

One cannot, however, see in this situation any kind of positive fact, because the way the wave is going, with some (although still very few, it is true) people considering the given solution reasonable and considered, soon someone will improve the formula and establish the only “criminal clause” compatible with the established obligation: “100 lashes on the pillory in the square” (which will be reopened by the governor on duty, with private funding).

Extrapolating the negotiation limits, some more auspicious ones, adhering to the idea and attentive to national history, may even have the “light” to resort to legislative precedents in force in Brazil in the XNUMXth century, which provided for the imprisonment of the “free” worker (contractor) to leave the farm without providing the service he had undertaken “by contract”.

The Law of September 13, 1830, for example, dealing indistinctly with contract work or for a fixed period, provided that: “Art. 5th. The service provider, who, evading the fulfillment of the contract, is absent from the place, will be returned to him arrested by deprecation of the Justice of the Peace, proving the contract, and the infraction, in the presence of the latter. Art. 6th. The deprecations of the Justice of the Peace, both in this case, as in any other, will be simple letters, which contain the rogative, and the reasons for the arrest, without any other formality, than the signature of the Justice of the Peace, and his Registrar”.

And Law no. 108, of October 11, 1837, which regulated service lease contracts signed by settlers, established that: “Art. 9 The landlord, who, without just cause, takes leave, or is absent before completing the term of the contract, will be arrested wherever he is found, and will not be released, as long as he does not pay double what he owes to the lessee, with deduction of expired soldiers: if you don't have enough to pay, it will serve the lessee for free all the time left to complete the contract. If he is absent again, he will be arrested and sentenced in accordance with the preceding article.”

The saddest and most depressing thing of all this is not hearing someone applauding the initiative, considering it an efficient solution to improve the statistical data of the Courts, which are full of processes with convictions of plaintiffs, waiting for the poor to become rich; the worst part is not being able to say that after going back so far we have reached the point of resuming the era of slavery, because this episode, added to so many others, only shows that slavery, in fact, we never strayed from.

*Jorge Luiz Souto Maior is a professor of labor law at the Faculty of Law at USP. Author, among other books, of Moral damage in employment relationships (publishers studio).

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