By GABRIEL FRANCO DA ROSA & PAULO DE CARVALHO YAMAMOTO*
The Colombian project follows the global trend of trying to rescue members of the country's working class from informality
"Even though we don't want to, we endure new laws \ We endure today for today that kings still exist \ We punish the humble and endure the cruel (Street 13, El Aguante).
On October 19, the Colombian Chamber of Representatives – which is equivalent to the Brazilian Chamber of Deputies – approved the basic text of a labor reform in a second round. If, in brazilian lands, the expression “labor reform” is enough to send shivers down your spine because it was the euphemism used (and defended) ad nauseam) by Brazilian businesspeople after 1988 to defend the reduction of social rights – and which, unfortunately, was made positive in 2017 – there, the situation is different.
The bill that amends the Substantive Labor Code (Decree 2.663/1950) was proposed with a view to implementing the idea of decent and dignified work. The Colombian effort is similar to the recent case that occurred in Spain, which in 2021 (Decree-Law 32/21) sought to combat precariousness and promote job stability. In both cases, in fact, the protectionist changes followed other reforms, which reduced labor protection.
The concept of decent work is fundamental to contemporary labor law and should have greater centrality in South America, given that it was developed at the 87th ILO Conference, under the efforts of the then director general, the Chilean jurist, Juan Somavía.[I] Although it is often disregarded by some interpreters of the Brazilian legal system, the concept appears as the eighth of the United Nations Sustainable Development Goals, according to the forecast of “promoting sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all”.
In addition to the debate on the evolution of the concept, it is important to highlight some essential dimensions for its recognition, such as: employment opportunities, adequate income and productive work, decent working hours, stability and security at work, equal opportunities and treatment in employment, safe working environment, social security, social dialogue and representation of workers and employers.
It is true that this is not the first change that Colombian labor legislation has undergone. The Substantive Labor Code had already been the victim of two other important reforms that reduced the scope of protection for workers. At least, with regard to protection against termination of employment relationships, our neighbors did not go through the international embarrassment of ratifying ILO Convention No. 158 and then denouncing it, in an invalid but effective manner, according to the heterodox legal solution found by the STF, in the context of ADI No. 1625.
Regarding informality, both Brazil and Colombia have high rates of informal work, which harms society as a whole. In the face of this social problem, our solutions are very different. The Colombian project follows the global trend of trying to rescue members of the country's working class from informality. Examples of this are several reform provisions, such as articles 73, 75, 76, 77, as well as new proposed articles.
On the other hand, here in Brazil, the Supreme Court has been implementing a radical and ultra-liberal reform, as can be seen in Theme 725 of General Repercussion.[ii] and in ADPF 324.[iii] Or, even through Constitutional Complaints, which aim to expand, monocratically, the destruction of labor law to recognize the validity of even verbal contracts of a civil nature, even in the presence of elements characterizing the employment relationship, fatally violating the principle of the primacy of reality.
In fact, regarding this basic principle (still) included in article 9 of the CLT,[iv] It also constitutes a cornerstone of Colombian labor law. Technological innovation, when applied in a democratic state governed by the rule of law, is subject to the national legal system. Hence, the Colombian project, in its articles 24 to 30, subjects platformized work to the intelligence of the “principle of the primacy of reality”, to differentiate between autonomous and subordinate contracts, in addition to determining the registration of platforms with the Ministry of Labor, the transparency of automation, supervision and decision-making systems and human supervision. The superiority of the Colombian solution compared to the proposal included in the Brazilian PLP 12/2024 is readily apparent.
Several other legislative changes in the text reinforce the expansion of worker protection and indicate another global trend, reflected in recent ILO documents and the 2030 Agenda. This is not about reducing the complexity of the global reality and the various and erratic movements that expand or reduce worker protection, but about demonstrating that the option that the STF has taken to repeal case law (which is prohibited by legal logic, but paradoxically often occurs at the hands of the “guardian of the Constitution”) the “principle of the primacy of reality” and, thus, labor law itself, is far from being the only alternative or even a global majority trend. On the contrary, it is an option that further isolates Brazil, which connects it to the level of civilization corresponding to the current state of production.
This certainly reminds me of the case of reggaeton, a style of Colombian music heard all over the world, but almost unknown in Brazil. It would be up to Brazil to listen more carefully to what comes from Colombia, including reggaeton.
*Gabriel Franco da Rosa He is a union lawyer and holds a PhD from the Faculty of Law at USP..
*Paulo de Carvalho Yamamoto is a legal advisor and has a PhD from the Faculty of Law at USP.
Note
[I] International Labour Organization. Report on the employment relationship. International Labour Conference, 87th Session, 1999. Available at:https://webapps.ilo.org/public/spanish/standards/relm/ilc/ilc87/rep-i.htm>.
[ii] “Outsourcing or any other form of division of work between different legal entities is lawful, regardless of the corporate purpose of the companies involved, maintaining the subsidiary liability of the contracting company.”
[iii] “The outsourcing of any and all activities, means or ends, is lawful, and does not constitute an employment relationship between the contracting party and the employee of the contracted party.”
[iv] CLT, art. 9: Acts performed with the aim of distorting, preventing or defrauding the application of the precepts contained in this Consolidation will be null and void.
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