Labor legal scholarship



Labor, social and tax rights represent the minimum counterpart so that labor exploitation does not turn Brazil into a devastated land

All expectations regarding the last session of the Federal Supreme Court, which took place on February 8, revolved around the position that the Court would take regarding the configuration of the employment relationship in the work provided to companies that own digital platforms, in the judgment of Constitutional Complaint no. . 64.018 proposed by the company Brasil Intermediação de Negócios Ltda.

However, given the lateness of the hour, the case in question ended up not being judged. In any case, the working class, Labor Law, the Labor Court and the Public Ministry of Labor did not emerge unscathed.

Concern for the interests of large companies and financial institutions

In another process on the agenda, RE 688.267, in which the need for motivation to terminate employment relationships in public companies was discussed, some STF ministers made clear, in their votes, the understanding that consolidated legal understandings should not displease the economic system, as can be seen, explicitly, in the speech of minister Dias Toffoli, when relating the result of an understanding of the legal order to the value of the company on the Stock Exchange, in which, later on, he ended up being accompanied by the minister Gilmar Mendes, who even made a point of explaining how meeting the banks' economic demands also concerns the interests, for example, of agribusiness and people who become rich by hoarding their earnings in financial institutions.

In his words: “Now, we cannot forget other reflex effects either. To the extent that we may be aggravating the direct or indirect costs of these companies, their value on the stock exchange also falls. And we are talking, for example, about one of the largest banking institutions in Brazil, with enormous importance. In some activities it is even the largest: in agribusiness…”.

Minister Luís Roberto Barroso also did not deviate from the same logic, hitting, once again, on the already worn-out theme of the so-called “Brazil cost” generated, according to his interpretation, by excessive labor litigation. In this regard, speaking with Minister Toffoli, Barroso stated that he will set up a Working Group at the CNJ to understand “what are the circumstances that lead” to the situation in which, in Brazil, according to his argument, there is labor litigation that is “superior in terms of very much in line with world standards”, which would be the cause of a “high Brazil cost”.

The Minister expressly said: “I'm even going to set up a working group at the CNJ... Labor litigation in Brazil is far superior to the world standard and this comes at a high cost to Brazil and, therefore, it is necessary to understand what are the circumstances that lead to this litigation so that we can face it, because I think it harms the country, harms legal security and harms the country's attractiveness for investment purposes. You only know the cost of a work relationship in Brazil after it ends. And therefore, this is very problematic from the point of view, including employability. And, therefore, without any prior diagnosis, I think we have to understand two huge disputes, Minister Gilmar, that exist in Brazil: labor and against the Public Power”.

The fundamental point, however, that would need to be understood by Ministers – and perhaps even is, since they do not look like “useful innocents” – is that a legal order forged to serve the interests of large companies and banks does not constitute a solid basis for a minimum project of society, in which human values ​​are put at the forefront. Such a stance, in fact, does not differ in any way from that adopted by the Bolsonaro government, as explicitly assumed by the then Minister Paulo Guedes, in the fateful ministerial meeting on April 22, 2020, when he stated, in all letters: “We’re going to put money in, and it’s going to work and we’re going to make money. We are going to make money using public resources to save big companies. Now, we are going to lose money saving tiny companies.”

It is well known that capital has no feeling and is not moved by solidarity or distributive sense. Its logic, as explicit in the speech of the STF Ministers, is competition and its final objective, or, its “end activity”, is profitability. So, when the legal order gives you opportunities to seek this effect through non-compliance with the rights of others, it will not be a moral precept – as suggested in some speeches given in that session – that will prevent you from acting in this direction.

The “high” labor litigation

The first empirical finding regarding labor litigation in Brazil is one that everyone who lives in the daily life of labor hearings and who studies labor relations in Brazil knows very well: the repeated and calculated non-compliance with labor legislation.

And what is the calculation made? The obvious calculation that it is much cheaper not to comply with legislation than to comply with it, whether because, in the reality of structural unemployment and the effects of the known “dirty lists” still weighing on the shoulders of workers, especially in rural regions, where job opportunities are seasonal and monopolized by a few companies, the vast majority of workers will not seek their rights in court.

In fact, more than a high level of litigation, what we have in the Brazilian reality is a “contained litigation”, in the happy expression of Mauro Cappelletti, coined in the discussion circles of the Florence Project, developed in the 1960s and 1970s, to enable access to justice, or, more precisely, access to a fair legal order, especially for the poor, holders of new (social) rights.

Therefore, a really serious concern related to the search for justice in our country must begin with overcoming the barriers that are established so that workers actually have access to justice and their social rights.

Remember, by the way, the situation of thousands of Brazilian men and women, most of them children, who are still subjected to work in conditions analogous to slavery, who do not have any type of access to Human Rights and who, in fact, are led to this exploitation on a repeated basis, since in addition to not having access to justice, they also have no alternative for survival. These people, in fact, only find a little citizenship through the local reaction with the support of personalities and pastoralists and, at the state level, through the actions of the Ministry of Labor and the Public Ministry of Labor.

It turns out that the MPT's performance was also criticized by Minister Gilmar Mendes, accusing it of motivating excessive litigation. For Mr. Gilmar Mendes, subjecting a person to work in conditions similar to slavery is not a problem to be solved. What needs to be resolved is the dilemma of Dr. Trabuco, president of Banco Bradesco, as we will see later.

The litigation caused by companies can be attested in the statistical data, reported in the 2022 TST yearbook, that the largest percentage of labor complaints concerns unpaid termination rights.

Not paying these installments, in fact, is part of the old strategy of many companies that, taking advantage of the delay until the hearing takes place, count on the worker's state of need and a certain complacency of the Labor Court (in this aspect , more concerned with improving its statistical data for solving cases than with rescuing the authority of public order rights), to reach, in the process, an agreement in which they commit to the reduced payment and in installments of the respective funds, receiving the “bonus” of “settlement of the extinct employment contract”. And, not infrequently, the agreement in question is not even fulfilled, leading the worker to the execution phase, which most of the time comes to nothing, for reasons identified below.

The victimization of employers and the lives of workers in the process as it is

It is important to realize that filing a labor complaint, even facing and overcoming all the obstacles, does not, in itself, constitute a factor in satisfying the worker's legal-economic interests. In addition to the aspect mentioned, conciliation, which, in 2022, ended up reaching – with a reducing effect – 44% of complaints, the rest, a good part are judged entirely unfounded, a small part is judged fully valid and the majority, only partially founded .

But having a judgment on the origin of the claim, which, in the same year, took, on average, 9 months and 7 days, also does not generate this effect of satisfying the right immediately, especially because, in 42% of these processes, the defendants appealed to the Regional Court, where the average trial time was 4 months and 20 days.

Only after this is the process able to return to the Labor Court, to seek the effectiveness of the right. This is if the company does not try to take the case to the TST, because if it does so, even if it does not effectively succeed, that is, if its claim is blocked in the appeal, it will take a few more months of processing (8 months and 28 days, for definition of the Interlocutory Appeal in the Review Appeal; and 1 year, 7 months and 8 days, for the judgment of the Review Appeal).

Once at the Labor Court, the settlement phase begins, which, in 2022, took, on average, 7 months and 7 days. With all these paths completed, the execution phase finally begins, whose average duration, in the case of private entities as executed, was, in 2022, 3 years, 10 months, 11 days; and, with regard to public entities, 2 years, 6 months, 4 days – data extracted from the Labor Court yearbook - see here. And it's not just a matter of time. In the end, the process can be terminated without the right having been concretely enforced.

Let's actually look at these numbers. At the beginning of 2022, there were 2.740.529 cases in the Labor Court in the execution phase. Throughout the year, another 624.320 were added to these, totaling 3.364.849 processes. Of this total, only 23% were extinguished, without even knowing whether the extinction was due to implementation or the finding that it was impossible to implement. The fact is that, at the end of 2022, there remained 2.622.106 processes in the execution phase.

And remember that the labor “reform”, blaming the male and female worker for the “high level of litigation”, as if the labor process were a pleasant and beneficial situation for them (and the data shows that it is not, effectively), It also attempted to make access to justice difficult, imposing costs on complainants, notably that of succumbing, which, to a certain extent, ended up being corroborated by the Supreme Court – ADI 5766, notably in the setbacks seen in decisions made in the context of embargoes. declaratory statements.

Even if an agreement with such general discharge is not reached, the company, when condemned, will only have to pay the so-called “Brazil cost” after years and, even so, with the “discounts” granted by the Supreme Court itself, when it minimized the effects interest and monetary correction for default – ADCs 58 and 59.

In other words, there is no effective punishment for non-compliance with labor law and even the interest and monetary correction applied are economically beneficial to employers.

The naturalization of employer delinquency

All these elements are at the service of what Wilson Ramos Filho, known as Xixo, has already called “employer delinquency”, which has generated, according to notes by Valdete Souto Severo, Ranúlio Moreira and Jorge Luiz Souto Maior, the economic practice of “social dumping” (SEVERO, Valdete Souto; MOREIRA, Ranúlio; SOUTO MAIOR, Jorge Luiz. Social dumping in labor relations . São Paulo: LTr, 2012).

The fact is that we have been living, for a long time, with the widespread – and not threatened – disrespect for labor legislation and this is the main factor of litigation, which best translates as the only alternative for many workers in Brazil to be able to assert part of their rights. their rights and which are, it must be remembered, increasingly smaller.

It is also important to understand that the employer who uses the strategy of not paying severance pay and who ends up obtaining effective benefit from the judicially formulated agreement does not worry about paying overtime; hazard pay; suppression of the interval, etc., reinforcing the logic of disrespect for legislation. The absence of time cards – or fraudulent time cards, which is even worse – and payment of salaries “outside” are common practices of most companies in Brazil, without any slight feeling of delinquency.

Add to this the situation of the many “entrepreneurs” who decide to double down and simply decide not to register their employees' employment records, even going so far as to use legal subterfuge to fraudulently remove the employment relationship. , such as, for example, the transformation of the worker into a PJ, with the assumed objective of overriding labor obligations in their entirety.

This illegality is naturalized, above all, in certain market niches, where job opportunities are in the hands of a few companies, such as in the sectors of journalistic enterprises, the commercialization of health, corporate law and the sale of real estate, as the worker or Workers who seek their rights easily find themselves included on a dirty list – real or imaginary – that prevents their reinsertion into jobs in those sectors.

The false discourse of entrepreneurship

We must also remember the great campaign around the discourse of entrepreneurship, which tries to make people who do not own any means of production and who only commit their workforce in the context of other people's enterprises believe that they are “entrepreneurs of themselves”. ”.

This discourse values ​​“freedom”, “autonomy” and, consequently, creates a moral degradation for employment and the closer it comes to the so-called “liberal professions”, historically aimed at people from the wealthiest and “traditional” segments of society. society, but this anti-employment feeling, or that of workers being in charge of themselves, is reinforced, even though, in concrete terms, such professionals have long since become proletarianized. There are not a few doctors and lawyers, just to mention these two examples, who sell, in very precarious conditions and with low pay, their work to large offices, hospitals and health insurance.

The curious thing is that the anti-employment sentiment, which leads to a certain pride in the act of “not punching cards”, is not dissociated from the defense of rights. Many adherents of this ideologically induced conviction do not want to be considered employees, but they do not give up salaries, vacations, breaks and everything else they can have.

Even politicians, who, for the most part, come from the business class and who, consequently, speak out vehemently against labor rights, when they put themselves in the position of “workers” do not give up their salaries ( some even take a little from those who are part of their cabinet), retirement (after two terms), holidays, recess, etc.

In fact, the reflection of this contradiction can also be seen in the stance and speeches of STF Ministers. Minister Cármen Lúcia, who even denounces that she knew little about the topic she was being judged on when she stated that in the private sector the layoffs of workers depend on proof of just cause, sought an argument to naturalize the loss of workers' status( the) stable employees of Banco do Brasil S/A when saying that “no one else has stability nowadays”, but it itself has stability (even more so, as it has lifetime status) and never, if When asked about it, she would say that she would give up this legal status, much less her retirement with full salary. In other words: as the popular saying reveals, “pepper in other people’s eyes is refreshment”.

The fact is that the naturalizations of the suffering of the working class and the precariousness of working conditions coming from people who are historically privileged, economically wealthy and full of rights are quite repugnant.

Undercapitalization and precariousness – the Brazilian business reality

It is also necessary to add that national capitalism is not exactly perfect when it comes to wealth distribution. In fact, 1% of the population owns 63% of the national wealth.

In this context of accumulation, many of those who, attracted by the dominant discourse, position themselves as entrepreneurs and use the hiring of people to carry out the services necessary for the enterprise, are completely devoid of capital and are integrated, in fact, there is a progressive debt process. More than 30% of the monthly cost of small businesses goes to paying off debts. And most of it doesn't even can fulfill its commitments assumed.

In more precise numbers, in August 2023 there were 5,8 million of indebted micro and small companies. And these entities, according to SEBRAE, constitute 99% of the total number of companies in Brazil.

With this, the effect is a notorious undercapitalization of national capitalism, generating widespread precariousness in various sectors of Brazilian economic activity and, as an obvious consequence, also of labor relations, as the data indicate that out of every 10 jobs, seven are “created” – according to economistic language – by micro and small companies.

Widespread precariousness – the reality of jobs in Brazil

If 7 out of every 10 jobs in Brazil are formalized by micro and small companies and if, according to IBGE, 80% of these companies close before 1 year of life, it is possible to point to a reduced capitalization and an ephemeral life of most employers Brazilians. And if this is a reality for employers, imagine what happens to workers who, to survive, depend on selling their labor power to these employers.

It is no coincidence, therefore, that jobs in Brazil do not last, on average, more than two years.

And it is no coincidence, either, that the labor turnover rate in Brazil is one of the highest, if not the highest, in the world, hovering around 50%. Just to give you an idea, in 2023, 23.157.812 people were integrated into an employment relationship, but, in the same period 21.774.214 people were fired, or resigned.

Add to this the situation that the majority of the working class, included in the Economically Active Population” integrated into the “Work Force” considered “Occupied”, 96.653 million, is not properly included in an employment relationship, formally and regularly. established. According to IBGE data, until August 2023, there were, in Brazil, 38.933 million workers working informally, in addition to 13.263 million, considered workers without a formal contract, while, with a formal contract, in the same month, in the private sector, there were only 37.361 million.

Add to these workers in precarious working conditions, another 5.814 million domestic workers, whose activity is historically marked by the suppression of rights, so much so that of this total, only 1.435 million work with a formal contract – which is no guarantee of respect for all rights – resulting in 4.379 million domestic workers working without a formal contract.

It should also be considered that, as already mentioned, registration is not synonymous with guaranteeing rights, especially because of the total number of workers in this condition, around 1/4 are linked to an outsourced employment relationship, meaning the record that about 80% of companies have some type of outsourced work relationship. And, as we know, outsourcing increases the state of subjection of workers, favoring practices that suppress rights.

Add to all these, the workers engaged through temporary employment – ​​in 2023 there were 2,4 million hirings in this sector. The only positive fact in this entire report for the working class is that, in 2022, there were 9,1 million workers associated with a union, which is not a small amount if we only consider the universe of workers. registered (49.578 million, 37.361 million in the private sector and 12.217 million in the public sector), even though the big media always create a gimmick to say that the unionization rate in Brazil is low.

Precarious conditions and suffering at work

Precariousness cannot be seen only from the point of view of the potential weakening of the effectiveness of rights. Precariousness, combined with this feeling of fragility of the working class and the increase in the power of employers, generates many other extremely serious effects for workers and even for the economy in general.

The result of all this, which is also related to the labor “reform” concluded in 2017, which made it extremely difficult for unions to act, obstructed access to justice, implemented measures to reduce rights, was that jobs became increasingly more legally insecure and constituted by an oppressive and morally toxic environment for workers.

In this way, at the end of 2023, we reached a record number of reports of moral harassment at work, whose main causes are structural unemployment and job insecurity, which create the concrete impossibility of reacting to excesses and demands for greater productivity stimulated by a logic of internal competition, given the fear of putting one's own employment at risk.

As a result, what is often left for workers is the “option” of enduring violence, until they become ill. Hence the reason why the sick leave at work has only increased in recent years, which also generates buzz in the business sector, but again only in terms of impacts on productivity, obviously. They seek to attack the effect, but never see themselves as the cause of the problem.

And that's not all. Also, as a result of the same equation, what has been observed is an increase in deaths resulting from workplace accidents, considering only workers with a formal contract. News that, in 2020, 1.866 people died in these conditions and that, in 2021, there were 2.538 deaths, an increase of 36% and which can be represented by counting 7 deaths per day.

It is good to know that all this data only considers formally regularized legal employment relationships and is based on information that reaches institutionalized bodies. There is, even in these relationships, a reality marked by underreporting, that is, the widespread practice of not assuming the illness or accident as an accident at work.

And it should also be noted that, one way or another, whether or not it is part of the legal configuration of an accident at work, absences caused by precarious employment – ​​and not by situations of privilege, as supporters of Social Security privatization want to argue – generate costs. for Social Security – and shock to the country’s economy. In 2023, the number of granting of benefits grew 12%, compared to 2022. In occupational accidents specifically, 120 billion were spent in a decade, until 202). And this is far from representing adequate and due protection for the working class, as, to contain expenses, Social Security has gone to great lengths in the practice of denying benefits, forcing beneficiaries into judicialization.

It is these suffocating jobs, with low pay and no guarantee of rights (and low expectation of seeking them in court), which, in fact, partly explain the fact that, in 2022, half of the terminations of employment relationships were due to resignation, which also generates alarm among economists, weighing on the productivity aspect of companies, obviously (Brazil breaks record for resignations in 12 months, according to research (; Brazil records more than 4,6 MILLION voluntary layoffs in 2022 – Brazil123).

The situation of the working class in Brazil is therefore far from being privileged, as suggested by the statements of some STF Ministers. Quite the contrary, what we have is a situation of widespread precariousness, suffering and, consequently, an almost total suppression of rights that are already less and less comprehensive.

And, contrary to the assumption adopted in the judgment of RE 688.267, dismissal without the need for motivation, or, as some labor jurists like to say, the “employer's potential power of contractual termination” and outsourcing (also welcomed and even expanded by the STF in ADPF 324 – Theme 725), only increase conflict, as they are causes of weakening the effectiveness of rights.

Low conflict or contained conflict

Considering this and taking into account the data already duly completed, from the year 2022, the inevitable finding is that, quite contrary to a high level of conflict, what we have in the Brazilian reality is a very restricted level of conflict, even more so if considered the aforementioned repeated practice (result of business strategy, or decapitalization or even cultural prejudice, still a reflection of slavery) of non-compliance with labor legislation.

The numbers reveal that, in 2022, in Brazil, based on an extremely conservative calculation, there were around 55.450 million workers in an explicit situation of precariousness:

(i) 18 million outsourced workers (around half of the 36 million with a formal contract); (ii) 19.550 million, among 39 million in informality, who were subjected to some type of fraud to reject the employment relationship and, consequently, labor rights. According to IBGE, of the total number of “informals”, there were: 13.236 million without a formal contract; 4.342 million domestic workers without a formal contract; and 2.972 million working in the public sector without a formal contract.
(iii) 18 million with a formal contract, which must also be considered vulnerable, due to all the aspects mentioned above. In this regard, it is also important to consider that, in 2022, 22,64 million new hires and 20,61 million layoffs.

So, potentially, there were at least 55 million workers with good reasons to defend their rights through judicialization. However, in that year only 1.636.707 labor complaints. In other words, only 2,97% of workers in precarious situations sought their rights in court, which is far from being considered a high level of conflict.

The concrete situation even contrasts with the assumption established by Min. Barroso that, in Brazil, the cost of an employment relationship is only known after the process has ended. If what Minister Barroso suggests, without any support from facts extracted from the national reality, were real, there would have been, at least, 20,61 million new labor complaints in 2022. However, repeat, there were merely 1.636.707. XNUMX.

Visualizing this number of complaints, for the purpose of saying whether it is a high number, when taking into account verifiable data in other countries, is not a parameter for any minimally serious analysis, as comparison with other social and economic realities requires a study by It's too complex and would take years to complete and it doesn't occur to me that it's already been done.

What is known, concretely, is that the widespread and repeated non-compliance with labor and social legislation is a national reality and this is all the more proven when one observes the historical process of wealth accumulation existing in the country, which is also based on disregarding the cost Social. The strategic disregard for social legislation means that a huge portion of the wealth (or reproduction of capital) realized in the production process is no longer directed to the working class or transferred to Social Security projects, therefore remaining – as there is no way simply disappear – in the hands of the capitalists themselves.

It should have been known for a long time that labor and social rights, in addition to being a necessary tool for preserving the integrity of those who make a living from the sale of their labor power, also constitute a relevant factor in the distribution of socially produced wealth.

The benefit of large companies with the generalization of precariousness

The result of this scenario of almost total deconstruction of legal labor protection and the constitutional project of the Social State, promoted, above all, from 2017 onwards, has been not only the generalization of precarious working conditions, as demonstrated, but, above all, the increase skyrocketing corporate profits and the impoverishment of the working class. See here, by the way, the graph of the evolution of the participation of workers’ income and companies’ profits in the national GDP, from 2017 to 2022 (Source: Salaries lose space in the economy and fall to less than 40% of GDP, the lowest level in 19 years (

It could be assessed that there is some contradiction between the assumption established in understanding the process, which has been, in the Brazilian case, progressive, of accumulation, and the information presented previously that 70% of jobs are offered by micro and small companies. Based on this last fact, the widespread disregard for legislation would not be a factor in accumulation, since, as we know, effective profits are produced in large companies, leaving micro and small companies, which, in fact, employ, with constant losses.

It turns out that the activities carried out by micro and small companies are, for the most part, linked to the production process (industrial or circulation of goods) of large enterprises and, in general, subject to competitive procedures, are obliged to follow the cost standards imposed by large companies to carry out their activities, which even constitutes a new factor in non-compliance with social legislation, as the price paid by services provided or activity performed is insufficient to cover the full cost of this legislation. In 25 years of experience as a first-degree judge, it was possible to verify that one of the biggest financial difficulties faced by micro and small companies was the low amount that large companies paid them for the services performed.

Large companies pulverized their factories and also brought into them small companies, considered “partners”, who took responsibility for part of the production process, as long as, obviously, they were not used to technology transfer.

What is certain is that the surplus value produced within micro and small companies is only effectively realized when integrated into the completion of the final product and its commercialization. The lower cost of this authentic “outsourcing”, as called by professor Márcio Túlio Viana, based on the reduction of salaries and the subsequent lowering of the social repercussions on salaries, favors the process of accumulation and disregard for the legal protection network of the work (Uber and Audi used carbon credits from areas with slave labor (

With the pulverization, large companies even manage to deviate from complying with specific historical achievements, enshrined in collective norms and even in internal regulations, achieved by categories of workers who counted on the strength of the high number of members.

The fallacies of the “Brazil cost” discourse and the oppressions it aims to cover up

This productive restructuring, which, therefore, is not natural at all, that is, it is not an inevitable effect of technological evolution but rather a strategy to reduce costs and weaken the union organization of the working class, is at the basis of the accumulation process and the widespread disrespect for labor and social rights, especially in the regions of peripheral capitalism, or, as Ruy Mauro Marini said long ago, “dependent capitalism”, since, in the global process of exploitation of labor engendered by large companies – it is worth remembering that not many companies (and financial institutions) dominate the world economy – establish conditions for the integration of “developing” countries into the world productive scenario, among them a standard of labor relations in which the exploitation of labor takes place at a cost below the line of value necessary for the survival and reproduction of the labor force itself .

The political origin of this economic structuring – which contradicts the thesis of inexorability determined by technological evolution – can be seen in the debates held and in the documents drawn up in the 1989 Washington Consensus, which made these conditions explicit, which even constitute the basis of the productive model that is conventionally called neoliberalism.

Thus, when labor and social legislation, with a constitutional basis, is also guided by human dignity, the social values ​​of work and free initiative and the improvement of the social condition of workers, built by achievements of the working class that were made possible in specific historical contexts, highlighting the social pact signed in the democratization process from which the 1988 Federal Constitution originated, establishes a standard of labor relations in which the value of exploitation is above that expectation of the large companies that dominate the world economy, a process of deconstruction of this legal apparatus begins, which has been done, in the Brazilian case, in several ways.

First, by the now classic formula, which is based on the slave and colonial roots that structured and still structure Brazilian society, the simple disregard of labor and social legislation. In this aspect, it is interesting to realize that disrespect for labor legislation does not even appear, in our social environment, as the commission of an illegality, which should result in punishment of the agent, to restore the authority of the legal order.

Our tradition views legislation as an obstacle and, often, as an undue “privilege”, making non-compliance seen as natural and even necessary self-defense.

An employer who does not comply with the legislation is not considered to be committing illegal acts or as a delinquent, even if they act deliberately and repeatedly.

There is a kind of naturalization of non-compliance with legislation because who, after all, are the bodies to which such legal norms are aimed? In the majority, black people who, according to what has become established in the national imagination, have already gained a lot by no longer being considered legally enslaved, constituting, therefore, a step beyond what is acceptable, that they are also subjects of social rights, with costs that impact on profit expectations of those who use their work to “entrepreneur”.

The fact is that the slavery and machismo that structure Brazilian society greatly facilitate the task of lowering the social cost of work on the periphery of capital. It is worth verifying that the racial – and gender – issue, affecting, above all, black women – is at the basis of the greater precariousness to which so-called peripheral professions are subjected, such as: domestic workers; garbage collectors; is outsourced; couriers. Black people are also the vast majority of people subjected to work in conditions even more analogous to slavery.

It is very important to remember that the black people who died most in the pandemic and this was certainly due to the precarious conditions of their professional activities. These people even constitute the majority of those who carry out nursing activities and who, with their work, saved lives, and were, at the same time, the ones who saw the most victims of contagion.

It is unacceptable, therefore, that STF Ministers, to justify even further retraction of labor rights, refer to a supposed “Brazil cost”, in this country in which the reality of precarious work killed hundreds of thousands of people in the pandemic and which, throughout its history, it has killed and maimed male and female workers.

Pacification and elimination of labor conflict through the naturalization of illegality

The naturalization of labor illegality can also be seen in the companies' stance on labor complaints. Even accused of having committed illegal acts, the employer appears at the hearing with the indignation of someone who is a victim of extortion, which does not change even when, after all procedural instructions, the complainant's allegations are confirmed. For the bulk of the Brazilian business community, non-compliance with legislation is the fault of the law itself, which went too far, and the labor complaint filed is nothing more than the worker's ingratitude. In this context, the labor judge has nothing more to do than recognize their difficulties and act to convince the complainant to receive what they are willing to pay – again, within the logic of a favor. It is not up to the labor judiciary, in his view, to convict him for an act of illegality and, even less, to impose some type of penalty on him. After all, as historically understood, State structures must function to meet the interests of the ruling class and, thus, assume the important role of reinforcing oppression.

It is in this way that any institutional act, coming from the Labor Court, the Public Ministry of Labor or the Ministry of Labor and Employment, that seeks to enforce, in concrete terms, the cold letter of the law, causes repulsion to the sectors linked to economic power.

In labor relations in Brazil, the application of the law causes surprise and vehement rejection from the business sector. Judicial convictions, especially when they impose repercussions linked to the repair of damages to the person of the worker or to the Social Security project, are taken as a misuse of power and considered a true offense, given that for the formulation of this demoralization of public agents who act outside the “script”, the business community relies on the commitment of large journalism companies.

This is how, every time, in Brazil, labor court decisions envisage the application of relevant legal effects to coerce illegality, the mainstream media very quickly renews its historic attacks on the Labor Court and labor legislation.

This became very clear on the occasion of the labor “reform”, when, by opening the historical window provided by the 2016 political coup, an immense change was promoted in ordinary legislation, to achieve the much desired, by the business sector, retraction of labor rights and the mainstream media was on vigil to harass labor judges, in order to demand that these professionals apply the so-called “law” without any interaction with any other normative provisions and even in a manner contrary to the Federal Constitution. Abruptly, the business community began to demand a legalistic stance from judges, but as long as the law applied was to those ordered by them in 2017.

During this period, all decisions that, accepting the terms of the said law, validated situations of reduction of rights, above all, through the premise of the prevalence of “negotiated over what was legislated”, or imposed costs on workers for (or through) access to justice, were immediately reported and naturalized, while others that rejected these effects, exposing how much the norms published in the context of the “reform” contradicted legal precepts and principles, in addition to explicit provisions of the Federal Constitution , were exposed to severe criticism, feeding back into attacks on the Labor Court.

In fact, anything that tries to go beyond the ideal script of pacified labor exploitation, as occurred since the first acts of European enslavement of the indigenous people who lived in the territorial region that, due to the imposition of the invaders, came to be called Brazil, is immediately attacked. . This is how, for example, the mainstream media and even the institutions of the Republic, including the Labor Judiciary, the Common Justice, the State Public Prosecutor's Office and the Police, come forward to morally and legally restrain strikes, leading to punishments, including with explicit (physical) violence, from the “strikers”, always seen as troublemakers, troublemakers and “communists” (in this last aspect, again, the similarity with Bolsonarism is not a mere coincidence).

What the various arguments for social pacification at the labor level, also encouraged in the “Conciliar é Legal” campaigns, aim to establish is a reality in which labor exploitation is not perceived. It is not for nothing that the expression “collaborator” is used in business discourse to refer to the employee and “partnership” to refer to the employment relationship.

The golden dream of the business community, reproduced in Minister Barroso's apprehensions, is an exploitation of work that is promoted without any conflict, that is, a pacified exploitation, in which the worker who provides his services without the compensation of a Duly signed work, with low pay, without receiving the usual overtime paid, under moral harassment, outside of all environmental parameters to protect their life and health and with the constant fear of being “sent away”, even if see yourself as a privileged being and be grateful to the kind and glorious boss.

Pacification and elimination of conflict through the extinction of rights

When Minister Barroso alludes to a “high labor conflict” in the Brazilian reality and also says that this is due to the excess of the social protection network, one can only conclude that what is on his horizon, as an ideal reality, is the of the worker without any labor rights and who is still grateful to the boss and also does not give work to people who work in state institutions.

If we think about it, from a mathematical point of view, the Minister's claim makes some sense, as those who do not have the right have nothing to complain about in court. With this strategy of the total absence of rights, the structural problems of the Judiciary would be resolved.

At the time of the debates in Florence, in the movement for Access to Justice organized by Mauro Cappelletti and Bryant Garth, the Chilean professor, Brãnes, envisioning the neoliberal reforms promoted in his country, said that the issues pertinent to access to justice in his country would already be all resolved, since the majority of the population, the poor, simply had nothing to claim before the courts (Mauro Cappelletti, “Access to justice and the role of the jurist in our time”, Process Magazine no. 61, p. 121).

This, moreover, is the reality of several categories of workers in Brazil who work in a situation of total labor anomie, such as day laborers, street vendors, interns, delivery men and app drivers, and who, as a consequence, do not participate, or participate in a very limited way, of the total number of complainants before the Labor Court.

Again the rhetoric of “excessive social protection”: the STF’s legal labor policy

The fallacy of the rhetoric of excessive labor protection only increases when, even after having achieved all the legislative changes it intended, the economic sector, not satisfied with the high profits obtained, continues to talk about the “Brazil cost” and the “old age” of labor legislation in Brazil.

Minister Barroso's speech about the “high” labor conflict in Brazil, given in the last session of the Supreme Court, on February 08, 2024, is exactly the same as what he expressed in May 2017, and at the time, he already concluded that the cause would be the “excess” of social protection (see here).

Based on statements like this, the “reform” was carried out, meeting all the demands of the business sector. Thus, the precariousness of labor relations has become an even more widespread reality, and, as if none of this had happened, the Minister repeats the argument!

It is frightening, to say the least, to see how rhetorical argumentation, disconnected from any commitment to knowledge, seeks to construct an inverted dimension of reality. The interesting thing is that, in this aspect, the Bolsonarist premises do not differ in any way from those disseminated by the so-called heralds of the defense of science and bourgeois democracy.

Taking into account the content of the decisions and statements made, it is authorized to say that the Ministers of the STF, with the exception of Minister Fachin, have conceived a kind of “labor legal Bolsonarism”, after all, no root Bolsonarist, with a minimum of understanding reality, will expose criticisms of the STF decisions taken in terms of labor legislation. In fact, this is exactly what happens, in concrete terms.

It should also be noted that the various monocratic decisions handed down within the scope of the STF, in Constitutional Complaints, removing the recognition of the employment relationship legitimately pronounced by labor judges and going so far as to declare the Common Court as competent, including, for saying whether an employment relationship subjected to factual-legal analysis is, or is not, an employment relationship, are not decisions based on legal precepts. In the same vociferous line as Bolsonarist action, its only rationality is an explicit manifestation of hatred for the working class, the Labor Court, the Public Ministry of Labor and labor rights.

The articulated deconstruction of the labor legal protection network: the reality

It is true that, as already stated in another text, this is not just the Supreme Court's fault, as the dismantling of the 1988 Federal Constitution, in terms of the labor and social protection network, had already been announced since the 90s, by the actions of different hands and minds linked to the Labor Court itself and labor doctrine.

As stated in the aforementioned text: “Countless were the legal theses developed in the 90s, under neoliberal influence, advocating the “flexibility” of Labor Law, which, in concrete terms, represented reading the constitutional text reducing its project of improving social condition of workers, in order to put the immediate economic interests of large companies in the foreground. Labor jurisprudence, in turn, accepted many of these theses, such as, for example, the erasure of protection against arbitrary dismissal, the extension of reduced working hours into uninterrupted shift shifts; that of negotiating legislation on various matters; the opening of labor intermediation, resulting, in 1993, in TST Precedent 331; and, mainly, the limitation of the right to strike.” (Here).

In the national labor legal environment, it is usual not to make reference to the institute of labor offence, preferring to speak of “contractual default”, which, of course, greatly alleviates the stance of failing to comply with labor legislation, which, as seen, is effective , often in an assumed, calculated and reiterated way.

The anti-labor legal work produced in the field of Labor Law, supported by supposed economic reasons, is not an accident. The success of these approaches, developed by characters that Antonio Gramisci would well define as “organic intellectuals of the business class”, comes from the commitment of economic power to encourage and reward them with positions, various financing and media coverage.

Remember that the effort to construct the ideals that make up the dominant neoliberal thought – which the vain so-called academic, an authentic scribe, thinks is an autonomous and innovative creation – is the result of the commitment, around actions articulated in this sense, signed by large companies and governments of dominant states. In this aspect, one cannot forget the dominance that large companies have on the global political scene, since many of them even hold economic power superior to that of countries on the periphery of capital and the aspect that the interests of large companies and dominant States converge in the same direction, where, in effect, large companies are located.

This commonality of interests, which results in the weakening of the social protection system in peripheral countries, can be easily verified in the content of Technical Document no. 319, from the World Bank: “The Judiciary Sector in Latin America and the Caribbean – Elements for Reform”, in which it was explicitly recommended that: “The market economy demands an effective legal system for governments and the private sector, aiming to solve conflicts and organize social relations. As markets become more open and comprehensive, and transactions become more complex, formal and impartial legal institutions are of fundamental importance. Without these institutions, development in the private sector and modernization of the public sector will not be complete. Similarly, these institutions contribute to economic efficiency and promote economic growth, which in turn reduces poverty. Judicial reform should especially be considered together when contemplating any legal reform, since without a functional judiciary, laws cannot be enforced effectively. As a result, a rational reform of the Judiciary can have a tremendous impact on the process of modernizing the State, making an important contribution to global development.”

The role assumed by the STF

It is no surprise, therefore, that Ministers of the STF, in compliance with the guidelines drawn up by the World Bank (which resulted in the creation of the CNJ and the setting of Management Goals in the Judiciary, together with the implementation of the PJe and more recently, the opening for trials using Artificial Intelligence, already openly defended by Minister Barroso, as it is a tool for greater control over judicial decisions, as it replaces the fallible and ideological human being and because it allows those who control the content creation procedure, without assuming who does so, exempts himself personally from responsibility and also not wanting to identify with the “rejected” labor jurists, so that they do not become targets of media attack and pressured by the forces of big international capital, explicitly taking on the pain of the business community, as a basis for deciding.

Even so, it is still an extremely depressing situation to see and hear the national Supreme Court reflecting the entire range of values ​​linked to the restricted interests of capital, in its eagerness to reproduce itself through the exploitation of labor, using, for this purpose, , from a slave and colonialist tradition.

Minister Gilmar Mendes, for example, makes his concerns in this sense very explicit when, to demonstrate where he draws his conviction from, he reports his “vast knowledge” about changes in the production process based on what he can observe on a visit to a factory in Sorocaba-SP. Furthermore, he mentions the conversations he had with the owner of Banco Bradesco; the mayor of the city of Santos-SP and the governor of the State of Espírito Santo.

The fallacy of productive restructuring

Based on this visual experience and these conversations with people directly linked to dominant interests, Minister Gilmar Mendes finds himself authorized to say that the world of work has changed and that there no longer exists, as there never was, any difference between activity-means and activity- Finally, concluding that Labor Law, therefore, also needs changes, as if, at some point in its historical formation, Labor Law was related to a specific production model.

Just to give you an idea, Fordism is a productive reality at the beginning of the 20th century and in the 19th century or even since the end of the 18th century, at the beginning of the Industrial Revolution, the material bases of Labor Law were already being forged. Furthermore, the first state labor standards directly aimed to prevent labor intermediation (euphemistically, today, called “outsourcing”) from representing a factor of capital's irresponsibility in the face of precarious forms of labor exploitation.

Labor rights are, therefore, not linked to Fordism, as Gilmar Mendes suggests, and, in fact, Toyotism, the nickname given to the process of productive restructuring in which the pulverization of factories and the artificial distancing of capital in various forms were promoted. of labor exploitation, only reinforced the logic of the existence of standards protecting human dignity and improving the social and economic condition of workers.

What is pointed out as the cause of the retraction of labor rights constitutes, in fact, just a strategy of capital so that a falsified version of reality, like the one exposed by the Minister, is disseminated and how much better if it is done by someone linked to the structures of the state power.

As for the personal offense inflicted against labor judges, whom he jokingly called “philosopher judges”, it is more appropriate not to say much, as the offense says more about the accuser than about the accused. In any case, using the same “poetic license”, it is necessary to say that it is much better to be a “philosopher judge” than to present yourself, explicitly, as an “economist judge”…

The fallacy of technological evolution

And what was said about the speech by the president of Banco Bradesco, one of two: either the president lied to the Minister; or the Minister did not reflect in a completely reliable way what was said to him by Dr. Trabuco that, due to “technological evolution, today, the bank has more “employees in the security area” than “in the activity itself at the end of the Bank".

Now, bank surveillance services, as we know, due to the political lobbying of these entities to restrict the category of bank employees and, consequently, the number of employees with a reduced 06-hour working day, have been, since the 80s, , outsourced. Therefore, banks do not have employees working in this sector, unless such surveillance companies, as was assumed, are owned by the banks themselves.

In any case, if banks have far fewer bank employees, due to automation, this does not mean that the remaining bank employees have to have worse working conditions and, even less, that this is imposed on those who, in the outsourcing process, provide services to banks.

If technological developments reduce jobs, it does not follow that those who are employed have to submit to worse working conditions. And this debate makes even less sense when we know that, despite technological developments and even because of them, working hours have only increased and causing even greater disruption at work, especially when carried out at home. Furthermore, the working day in Brazil is 10th largest in the world, this without considering the practice of overtime – almost always unpaid, so much so that the request to receive this work was the champion in the Labor Court, in the 1st half of 2023.

If all this were not enough, it is essential to remember – because, after all, not so much time has passed – that the essentiality of work was attested and widely recognized during the pandemic, given the economic depression caused by social isolation. As expressed in the text published on April 21, 2020: “The social isolation implemented worldwide as a way of containing the contagion of the COVID-19 disease allowed us to understand: (a) the centrality of work: without work, the economy does not survive. There is no business acumen, there is no managerial competence, there is no entrepreneurial intelligence and there is no astuteness in investments and commerce that, in a generalized way, make the economy run without involving work;

(b) that work is a human activity: no matter how many, for a long time, have tried, as a way of devaluing the workforce, to say that work is over or that human work has been suppressed by new technologies, it remains, Now, it is clear that work remains central to the capitalist economy and that work is an activity of human beings, male and female workers; (c) that wealth comes essentially and structurally from work: the widespread impoverishment due to the suppression of work is the complete demonstration that social wealth comes from work;” (Here).

Therefore, now, a few years after the most tragic period of the pandemic, in which thousands of lives were lost, it constitutes a serious case of loss of recent memory or selective memory, to continue saying that the work is over and that what really matters is favor the interests of companies that dominate technological knowledge.

The least that could be expected from those who speak out in favor and in the name of knowledge, science, against denialism and in defense of the democratic order is that they continue to act towards the realization of the gratitude that, on the occasion of the pandemic, was made publicly to workers who, due to the fact that their professions are linked to activities essential to the preservation of life, continued working, putting their own lives (and those of their families) at risk, to preserve that of millions of Brazilian men and women , including: nurses; doctors; delivery companies in general, especially through applications; gas station attendants; building gates; attendants in pharmacies, hospitals, bakeries and supermarkets; journalists; cleaners; drivers; loaders; garbage collector(s); rural workers; caregiver(s) etc.

It is inconceivable – even more so if we remember that during this period there was also praise for knowledge and science – that the economistic arguments against life and the improvement of the social and economic condition of the working class expressed before the pandemic continue today, even after the hard learning obtained during that period – which, in fact, has not even ended, really and officially.

The reason for this may be the fact that the highest percentage of lives and related suffering occurred among working class people living on the outskirts of cities and, above all, black people. Hence why the ruling class does not seem to have many reasons to change its convictions, especially because, in a certain sense, the process of accumulation maintained in that period has favored its enterprises at this time after the pandemic.

The assessments by the mayor of the city of Santos regarding the possible granting of tax privileges to companies operating in the port area, in essence, do not even reinforce the Minister's argument, quite the opposite, as they point to the need for regulation of production that envisions the interest of the community.

Embracing disrespect for the human condition of the worker as an essential factor of productive efficiency

And as for the complaints of the governor of Espírito Santo, the report is also a pile of inconsistencies, in addition to the more serious aspect of considering the governor's “pains” as a basis to justify the withdrawal of a legal labor guarantee. According to the logic established in the demonstration, the governor's speech was an opportunity to express an attack on the actions of the Public Ministry of Labor and the TRT17, which would have established jurisprudence in the region regarding job stability and, therefore, “who is going to want to settle in Espírito Santo”?

Firstly, it is not included in the Summaries of the aforementioned Court any statement that refers to the guarantee or stability of employment and any decision of a Panel, in a given composition, establishing the right to reinstatement of the employee, in the case of arbitrary or discriminatory dismissal, does not represent an understanding of the Court.

Second, the Courts' judicial decisions are subject to review by the TST, so there is, technically, no state Labor Law in the Federative Republic of Brazil. And, thirdly, if that were the case, that is, if there was this understanding of the TRT17 that arbitrary dismissals would be prohibited, this would only represent a demonstration of appreciation and respect for the express terms of section I, of art. 7th of the Federal Constitution and, therefore, it would not deserve public criticism from the Minister, especially for the pleasure of a governor, but rather praise, since the Supreme Court is the guardian of the Federal Constitution.

But there is something even more serious embedded in the argument: the assumption that economic efficiency depends on the employer's ability to dismiss employees at will. At least, in Brazil, in the governor's proposal accepted by the Minister, no employer establishes itself in a location where it cannot exercise this power to drive a worker into unemployment.

And the interesting thing is that this possibility was, throughout the trial, related to the high level of conflict in the Labor Court. Now, it is precisely the high turnover of labor, the result of the empty denunciation for the termination of the employment relationship, which, as we have seen, has constituted, at the same time, a factor in the ineffectiveness of the legislation and, consequently, an essential cause of the filing labor complaints. In a regime of employment stability, even if mitigated, the trend is towards greater defense of respect for rights, that is, less conflict, with repercussions on productivity and efficiency. Precariousness only matters within a logic of predatory exploitation, typical of extractivism. And it was this after all, a predatory and derogatory capitalism of the human condition, that was established as the ideal parameter in the Ministers' demonstrations.

In this aspect, in fact, Minister Gilmar was interrupted by Minister Alexandre de Moraes, to reinforce the argument, expressing his “great concern”, which, evidently, is with the interests of capital. The Minister said:

“my great concern”, in addition to the provisions of art. 173 of the CF, is that “there will not be a non-judicialized dismissal, all will be judicialized, alleging, exactly, misuse of purpose. Now, what motivated it will be alleged deviation, even if there is no deviation and it will happen as happened in the present case: the judge orders it to be returned. Then he comes back and stays for a year. Then the Court orders him to leave. The administrator, the manager, who intends to restructure a certain sector of his company in an absolutely lawful way, will no longer be able to do so”.

The curious thing is that the specific case concerned public companies, but the Minister spoke of the manager and “his company”, therefore extending his concerns to private sector companies.

The erasure of workers

In none of the statements made during the Supreme Court session in the trial in question was the perspective of male and female workers considered. It was as if they didn't exist. In the specific case, the argument prevailed that Banco do Brasil could not have discharged the complainant in a discretionary manner, but what this dismissal, considered illegal by the Supreme Court itself, represented in the life of that person, whose name was not pronounced at no point, it didn't matter at all.

And, in fact, he wasn't even just a complainer. They were João Erivan Nogueira de Aquino and four others, whose names it was not possible to locate. These people, who joined Banco do Brasil, after passing a public competition, they were dismissed by “letters” in 1997. They proposed a labor complaint in 1998 (case no. 0508434-91.1998.5.07.5555), and, 16 years later, obtained judicial confirmation that the bank's act was illegal, but they will not be able to reverse the injustice suffered and all possible damages that they experienced in those years because the Ministers of the Supreme Court did not have eyes for their real existences and, therefore, by a double mistake, they made the illegality licit, saying that only from that day (08/02/24) onwards did the discretion for dismissals of employees from public companies would be banned, all under the argument that they did not want to “stimulate” conflicts, that is, they did not want other workers, victims of the same illegality, to seek their rights.

After all, what the Ministers want is to reduce the number of ongoing processes, even if, to do so, a reality is established in which workers have no rights to complain or concrete possibilities to do so.

And it is worth noting that even declaring that the dismissal of public company employees cannot be carried out arbitrarily, the Ministers made a point of noting that they were not creating a guarantee of employment for workers, but merely a mechanism to prevent acts impersonality of the manager. The importance of preserving employment and visualizing the afflictions of those who lose a job were far from the Ministers' concerns. Barroso even made a point of saying that a “simple rationale” would be enough for the dispensation to be completed. In fact, they almost apologized for the fact that they were setting this limit and always reinforcing that this condition would not apply to the private sector, even though, as stated, item I of art. 7th of the Federal Constitution says exactly the opposite, in line with ILO Convention 158, ratified by several countries around the world, especially in central capitalism.

Anything goes for economic interest

To reject the need to establish an administrative procedure for the due investigation of the reasons for the termination of the employment relationship, as proposed in Minister Fachin's solitary vote, Minister Barroso went so far as to say that it would not be necessary to establish this condition because many public companies, “at least the serious ones”, already have a provision in this regard in their Internal Regulations.

The administrative procedure was recognized as a serious factor, but the Supreme Court, with conviction, chose to corroborate the acts and interests of non-serious companies.

How is this possible? Simple. This is because, as can be seen from the content presented throughout this text, the Supreme dream, in terms of labor relations, is the reality of a legal order that corroborates the interests of companies, without the possibility of them being bothered by related demands. Human Rights, Social Rights and Labor Rights.

A reality of: delivery men, without rights, who do not complain; workers in conditions similar to slavery, who do not complain; domestic workers, in total precariousness, who do not complain; rural workers who work until exhaustion and do not complain; workers in the precarious tertiary sector, without rights, who do not complain; and achieve statistical data in the Judiciary that would make the “first world” jealous!

Another point established as a premise for the solution to the need to require a prior administrative procedure was respect for competition. According to the Ministers, such a requirement could generate business inefficiency and, thus, constitute a factor that interferes in the competition between public companies and the private sector. Thus, instead of thinking about equating the activity of the two sectors based on the level of establishing minimum guarantees to preserve the dignity of male and female employees in general, the Supreme Court decided to establish an “isonomy” below the minimum line of protection of employment and fundamental rights.

Minister Carmén Lúcia even let it slip that her basis against discretion would be the legal figure of abuse of rights. As she explained, a legal relationship cannot be terminated abruptly, without motivation, because this represents the commission of an abuse of rights.

If we remember that the notion of abuse of rights encompasses the principle that the exercise of a subjective right will be considered an illicit act when it has no objective other than causing harm to others (LARENZ, Karl. Civil Law – general part), the Minister's statement is legally correct. And in this line of reasoning it is also necessary to bring to light the principle of good faith, from which the lesson is drawn: “whenever there is a legal connection between certain people, they are obliged not to defraud the natural trust of the other” (LARENZ , Karl. Civil Law – general part).

These figures of abuse and good faith are expressly in accordance with the current Civil Code, art. 187, which makes it clear that anyone who, regardless of fault, is the holder of a right, “when exercising it, manifestly exceeds the limits imposed by his economic purpose ou social, by good faith or good customs”.

The foundations of Minister Carmén Lúcia's decision, to justify the requirement of motivation for the termination of the employment relationship in the specific case, are, therefore, impeccable, but they are incomplete because they did not go to the point of being required, for the full effectiveness of these precepts , the establishment of a specific prior procedure, with the guarantees of adversarial proceedings and broad defense.

In any case, the argument remains an important precedent for it to be applied, even for reasons of competitive equality, to terminations of employment in the private sector, as workers in the private sector cannot be denied the application of precepts of Rights Fundamentals.

Competition, moreover, cannot be a factor in legitimizing the lowering of human dignity. Remember that the entire international apparatus of Human Rights and Social Rights in general was implemented precisely to prevent competition between companies – and their respective countries – from leading humanity to bankruptcy. And the establishment of this level was the result of all the understandings formulated about the causes of the two world wars (1914-1919; 1939-1945).

It is inconceivable, therefore, that the Supreme Court of a country promotes an authentic ode to competition, as a justifying factor for the suppression of Human and Social Rights!


Finally, it is important to return to the point of the “excessive labor conflict” mentioned by the Ministers, because there are still sensitive points to be made clear. In effect, Minister Gilmar Mendes, not satisfied with offending the honor of labor judges, also accused an institution of the Republic, the Public Ministry of Labor, which has a huge list of services provided to Brazilian society, of promoting “excessive judicialization ”, in the name of “protecting diffuse and collective rights”.

The actions of the Public Ministry of Labor are all preceded by investigation procedures and address situations of relevant social repercussion, such as, for example, repeated and collective attacks on labor rights, labor fraud and degrading working conditions. Almost all of them reflect serious attacks on rights, in which workers would not have effective material conditions to pursue their rights, such as, for example, the countless situations in which work occurs in conditions similar to slavery. Therefore, it is largely irresponsible to carry out, in the middle of the Supreme Court session, this attempt to discredit the Public Ministry of Labor, especially because this stance represents support and authentic encouragement to the persistent aggressors of labor legislation. It is, therefore, an explicit alliance with all those who use child labor, who subject workers to degrading conditions, who commit anti-union acts, who defraud the employment relationship, etc.

Subsequently, Minister Gilmar Mendes, expressly disregarding the content of art. 170, section VIII, of the Federal Constitution assumed that it is not possible to achieve full employment and, moreover, that the search for employment impedes technological evolution: “This idea of ​​full employment or this type of protection unfortunately leads to this”.

So, for Gilmar Mendes, firstly the Constitution can be solemnly ignored because, after all, the precept in question would be something in a communist country; and, secondly, what matters is meeting the demands of technology companies, even if, to this end, the level of civilization sought by Social Rights is lowered.

It just didn't occur to him that companies that operate with high technology are large foreign companies that do not promote the transfer of knowledge and employ very few people in Brazil. So, using the expertise of these companies to justify the abandonment of the social project of integration through work, without putting anything in its place, is equivalent to selling the country, whose global insertion is strictly linked to its workforce and environmental heritage, at a bargain price. , talking, at the same time, about technological evolution.

Labor, social and tax rights, as even the mayor of Santos, cited by the Minister, would say, represent the minimum compensation so that the exploitation of labor does not turn Brazil into a devastated land.

The worst thing is that, considering the direction that the Supreme Court decided to give to labor relations in Brazil, we are taking big steps in this direction.

But, for many people, with whom the Ministers are explicitly talking when they demonstrate on labor issues in sessions of the Supreme Court, there is not much to worry about, as they are, all of them, people who are not very bothered by the destruction of a region or even a country, if the destruction arrangements are beneficial to the process of accumulating wealth that allows them to go and live in another part of the Globe whenever they want. Many, in fact, no longer even worry about the future of planet Earth, as they are buying land on the moon or envisioning interstellar travel.

It is these “rich people”, expressly referred to by Minister Gilmar and who enrich themselves due to the illegalities committed by banks, who cannot be disturbed. As he said: “There are a lot of rich people today because they are shareholders of Banco do Brasil, partners, therefore, of this model and so on. We need to understand a little about the consequences of this model.”

And Minister Barroso, even accepting the thesis of setting a certain limit for the assignment of employment relationships with public companies, immediately tried to reassure the market: “the way in which we are voting, in the majority, has the necessary precautions to prevent the effects negative.”

*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 (Studio editors) []

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