Disguise and Disguise

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By JORGE LUIZ SOUTO MAIOR*

Comment on the editorial of the newspaper Folha de S. Paulo

“What is created to improve the economy does not work if the economy does not improve”, says Folha de S. Paulo (paraphrase of the summary of an editorial).

After calling the military dictatorship a “dictabranda” (editorial of November 17, 2009) – with a subsequent acknowledgment of the error – and advocating contempt for the popular will in democracy so that labor “reform”, shaped in accordance with business interests , could be implemented (editorial of 02/05/2017),1 the newspaper Folha de S. Paul, now, in a new editorial, he goes public to, when it comes to labor issues, reaffirm his Bolsonarist side, although to appear different, in the end, he weaves a somewhat contextless criticism of the Bolsonaro government.

Leaving aside its role as a vehicle of information, the company in question has long assumed the character of the poster child for labor “reform” and, to that end, has been willing to create various factoids and disseminate distorted versions of reality. This time, he even managed to take a step further: that of complete dissimulation.

In the editorial of November 13, 2021, “Reformed work”,2 the company and employer Folha de S. Paul, whose journalists went on strike on 10/11/21, for better wages,3 praises the changes brought about by the “reform”, without providing any factual basis for its recalcitrant defense, which is also out of context, but which certainly has some purpose still not well understood.

By the way, the editorial, first, suggests that the objections to the reform are merely “political”, trying, in plan, to disqualify the critics and delegitimize the debate. Next, he defends part-time work and intermittent work with the reproduction of empty and outdated rhetoric, which has been so criticized for constituting forms of hiring “adherent to the practice of the contemporary world of work, more anchored in temporary tasks and multiple occupations”.

Following the logic of brazenness, he says that these types of hiring – translated into the ideological expression “greater flexibility” – could have generated more jobs, already expressing the recognition that this effect has not been reproduced. But, without talking about this specifically, he makes a point of implying that if the generation of a greater number of jobs did not occur, there would have been, with the creation of such modalities, at least the hope that such an effect would occur, stating, peremptorily (even without any concrete argument), that before, without this legislative change, the generation of jobs was “almost impossible”.

It also adds the fallacy, with a pinch of populist sensationalism, that the impossibility of formalizing jobs affected, above all, less qualified workers, “who remained outside the guarantees established in the legislation”. Obviously, he is not aware of the great explicit contradiction, which consists of accusing standard hiring as a factor that distances workers from legal guarantees and, at the same time, formulating a defense of such “new” modalities, which, concretely, promote the reduction of the guarantees established in the legislation through the reduction of wages and rights, mainly those resulting from collective norms. The intermittent worker, moreover, although formally and statistically an employee, in practice, is a constant unemployed, with small, unpredictable, harassing and poorly paid work opportunities. And part-time employment, as the law itself declines, in the aspect of effects, is an incomplete job, but, almost always, with full jobs.

Thus, what the editorial proposes for “lower-skilled workers” is a form of exploitation without the guarantees established in the legislation, highlighting its agreement with the axiological postulate that the enslavement of the vulnerable is legitimized by vulnerability itself and also making it clear that the target of their concerns is another, that is, the employer, who is the real beneficiary of the precariousness of the labor legislation promoted by the “reform”, since, with the legal permissive, it was faced with the possibility of exchanging workers with standard contracts, with the fullness (already quite reduced, it is worth remembering) of the guarantees established in the legislation and with the incidence of the effects of union organization, by other workers without the same guarantees.

Next, the editorial brings a true pearl of rhetoric (to speak about it politely). He says that the reform intended to “simplify the rules and better balance between the parties in the lawsuits”, when, truly, the “reform” did not simplify the labor procedure, quite the contrary, it brought several controversial themes and, thus, created countless complicating factors. The work process, moreover, has always sought exactly this effect of establishing a balance between the parties, only starting from the recognition, drawn from reality, that the subjects of the employment relationship are economically unequal. So, the labor process brought (and still brings) several rules to protect the weaker party precisely to promote balance in terms of access to justice, opportunities for demonstrations, production of evidence, etc.

The labor “reform”, however, thinking about the process only from the angle of the interest of the strongest, the employer, and considering the worker as a potential delinquent, who only promotes “opportunistic” actions against the poor employer, created several obstacles to access to justice, even going beyond constitutional guarantees.

What the propaganda editorial calls “balancing the parties” actually constituted an initiative to further unbalance the parties. It is curious and revealing to notice that in the previous paragraph the editorial stands in defense of less qualified workers, accusing (in an even bizarre way) the legal labor protection of excluding these workers from the guarantees established in the legislation, while, in this other paragraph, the editorial takes the same workers as opportunists.

One of the main effects of blocking access to justice is the expansion of the ineffectiveness of legislation and, consequently, a greater stage of exploitation and suffering of the working class, which is even reflected in the increase in accidents at work and in the increase in of informality, which, for the most part, is merely hiring employees without formalizing the employment relationship.

The editorial, however, celebrates that the number of actions has decreased. Which is also quite strange because, after all, Folha is not the judiciary. But it ceases to be strange when one remembers that it is not a matter, in this case, of the manifestation of an information vehicle, but of an employing company, which is financed by several other employing companies. What can only be celebrated, therefore, is how much the suppression of workers' citizenship was beneficial to their businesses and those of their partners. It has nothing to do with the efficiency of jurisdictional provision, not least because this is not exactly what interests tax evaders and lawbreakers.

This becomes clear, by the way, in the next paragraph, when it says that the prohibition of access to justice favors the economic expectations of companies in terms of reducing “uncertainties” in relation to labor liabilities. It turns out that labor liabilities arise from non-compliance with legislation. So, creating liabilities and getting rid of them by preventing workers from taking legal action is not something that – even from an ethical point of view – can be defended. Legally, don't even talk.

But the editorial is by no means satisfied and continues with the rhetoric that this improved economic expectation of companies, or, to put it more clearly, this increase in profitability of companies promoted by the prohibition of access to justice (which the editorial recognizes less) would not be so undue because it would be reverted to the benefit of society in general through the creation of new jobs.

It so happens that, as the editorial says, this did not materialize because the STF, “unfortunately”, considered unconstitutional the device of “reform” that imposed “the losing party” (read, the workers, since the employers such an imposition has always been the case) to pay the “costs of the process”.

Notice: the editorial justifies that the greater profitability granted to companies by the labor “reform”, as of November 2017, through the prohibition of access to justice, only did not generate jobs because the STF, in October 2021, declared it unconstitutional of the “reform” norm that imposed the payment of costs and attorney fees to the legally recognized as poor, who, because of this (which is not a prize and much less the attestation of a privilege, quite the contrary), is a beneficiary of the free justice, according to the fundamental norm established in the Federal Constitution.

That is, according to the editorial of the Sheet, the decision of the STF four years later had a retroactive effect on the allocation of company profits. It is not possible to comment on such an argument and it is better not to qualify it. It is true that the editorial recognizes that the rule introduced by the “reform” and declared unconstitutional by the STF brought “risks” to the fundamental right of access to justice. But these risks would be justified by the effect of repressing “exaggerated litigation”, which is what, according to the editorial, “ravages the Labor Court”. In terms of the editorial, therefore, the act of disregarding the constitutional text would be justified to punish “exaggerated litigation” (whatever that may be), which would be the rule in the Labor Court, and the effect would be one of the noblest , including that of favoring “substantiated demands”.

However, the editorial, first, does not bring any concrete data regarding this so-called “exaggerated litigation” and, second, it is mistaken regarding the assumption of evaluating the right of action based on the effect of the validity or rejection of the request. They are very different institutes and it is not up to us to discuss them here. In any case, repressing “exaggerated litigation” does not have any concrete effect on the validity of the request or even on the effectiveness of the process, and even if it did, there is no legal provision for achieving this result.

What the law prohibits is litigation in bad faith, which is not presumed, much less can it be fixed as a principle to generate structuring consequences of the procedure. Litigation in bad faith has legally foreseen characterization and effects. Applying punishment without legal provisions, to meet undisclosed intentions, is a typical attitude of authoritarian regimes, even more so when starting from the explicit recognition that the act violates the Constitution and that it is legitimized by a logic of exception.

Finally, after all the argumentative atrocities, the editorial starts to deal with the generation of jobs that was promised by the labor “reform” and recognizes that jobs were not generated. But it only brings some data from 2021, related to the pandemic period. Nothing says about the period from 2017 to 2019, whose disastrous effects of the “reform” on the lives of male and female workers and even on the economy had already been produced, even though these effects have intensified, in the Brazilian reality, the damage caused by the pandemic (with reinforcement, of course, given by MPs 927 and 936 – also supported by the employing company in question).4

But the most impressive thing is the conclusion of the editorial, in the sense that the “reform” did not produce the effect of generating jobs because the economy was “precarious and remained so afterwards, with the worsening impact of the pandemic”. The amnesia of the editorial is symptomatic of a much more serious illness, since everything that was said at the time in favor of approving the “reform” was based on the assumption that labor legislation (“rigid and retrograde”) made the country’s economy unfeasible. The “reform” was necessary and urgent to improve the economy and, with this, promote job creation.

But now the Sheet comes and recognizes that the economy even after the “reform” continued to be bad, but that this does not prove the ineffectiveness of the “reform” to produce the effect that it advertised, that is, the improvement of the economy, because, after all, the economy did not improve. Did you understand? Don't even try. It's just disguise and shamelessness!
The importance of the editorial (and hence the task of commenting on it) is the understanding that, more than ever, it is necessary to distinguish who is in fact in defense of constitutional regularity and democratic order, in order to build an effectively inclusive society, solidary, tolerant, non-discriminatory, non-prejudiced and materially egalitarian, who only uses constitutional and democratic arguments (sometimes with the appearance of agenda identity) to preserve indigence, inequality and exploitation.

*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).

Notes

[1]. “Pains of Democracy.” https://www1.folha.uol.com.br/opiniao/2017/05/1880242-dores-da-democracia.shtml
[2]. https://www1.folha.uol.com.br/opiniao/2021/11/trabalho-reformado.shtml
[3]. https://www.brasil247.com/midia/mais-de-300-jornalistas-de-folha-estadao-globo-e-valor-aderem-a-greve-por-reajuste-de-salario
[4]. “In the years following the “reform”, what was seen was:

  1. increase in profits of the 308 publicly traded companies traded on the Stock Exchange that operate in Brazil, which reached, in 2018, the amount of BRL 177 billion, representing an increase of BRL 5 billion compared to 52,3[ii];
  2. increase of 12,3%, in 2018, in the profits of the four largest Banks operating in the country (Itaú, Bradesco, Santander and Banco do Brasil), which would even be the biggest legatees of the Social Security reform that is intended to be implemented in the Brazil[iii].
  3. increase in unemployment, which reached 12,7% in April 2019, reaching 13,4 million people;
  4. the number of people with a formal contract has remained practically stable, currently around 32,9 million people[iv], that is, without a considerable increase, and this considering the level of 2015, which already brought the loss of 4 million formal jobs in relation to 2014[v], and among young people up to 24 years old, what remains is the closing of vacancies in an increasing number[vi];
  5. record number of discouraged (4,8 million)[vii];
  6. increase in informality (11,1 million)[viii];
  7. increase in precariousness[ix] [X];
  8. reduction, in the order of 34%, of worker access to the Labor Court[xi];
  9. increased distress at work[xii];
  10. generalized worsening of working conditions, with an increase in the number of accidents at work[xiii], this in a country where there were already 700 accidents at work per year[xiv] and which already held the rank of fourth country in the world in number of deaths from work accidents[xv];
  11. decrease in rights and normative gains[xvi]of workers, with a reduction in average wages[xvii], causing the average Brazilian income to fall[xviii]. Inflation in 2018 was around 4% and the “increase” in wages in 2018, on average, was around 2,9%[xx]
  12. decrease in consumption[xx];
  13. family indebtedness[xxx];
  14. reduction in tax and social security collection[xxiii];
  15. expansion of the Social Security deficit[xxiii];
  16. increase in public deficit in general[xxv];
  17. increase in misery[xxiv];
  18. increase in social inequality[xxv], and, precisely, in the last period, we have already reached the result that the income of the richest 1% was 36 times higher than the average of the poorest, and not even this accumulation remains in the country, since the the rich increased, in a record way, the volume of their remittances abroad[xxviii];
  19. weakening of unions[xxviii].

The concrete effect, from the social point of view, was the considerable increase in the number of Brazilian men and women led to extreme poverty (or below the poverty line), reaching the number of 54,8 million people with household income per person less than BRL 406 per month[xxix].

Faced with the numbers of a clear process of authentic dismantling of the national labor market, the generalized downgrading of citizenship, the breakdown of democracy, the assumed contempt for Human Rights and the environment, what was produced was a low economic expectation, causing that, in August 2019, there was the largest outflow, in 23 years, of foreign capital from the stock exchange, in the amount of approximately BRL 10,79 billion (net)[xxx].” (SOUTO MAIOR. Jorge Luiz. “Retrospective of 2020: the reality of the working class that is not seen around.” Available at: https://www.jorgesoutomaior.com/blog/retrospectiva-2020-a-realidade-da-classe-trabalhadora-que-nao-se-ve-por-ai).

 

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