It's time for the STF to respect the Constitution

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By JORGE LUIZ SOUTO MAIOR*

Labor judges are respecting the laws and the Constitution. It is time for the STF, in labor matters, to do the same with the constitutional legal order

Report published, perhaps not by mere coincidence, by the magazine Veja, bears the title: “Gilmar Mendes’ harsh message to labor judges who ignore the STF”.

Well, first it is important to remember that when they take office, judges take an oath to comply with the laws and the Constitution. Therefore, when they say (as they have done for decades) that there is an authentic employment relationship in a given form of service provision, based on legal and constitutional precepts, they are precisely fulfilling their functional duty.

What is new now, which began in 2023 – it is worth noting – is that the STF decided to say that the Labor Court can no longer fulfill its institutional role, defined as such since it was installed in 1941, of making decisions with recognition of the employment relationship, under the argument that such decisions would be contrary to the position established in this regard by the STF.

But if there has been no change in the constitutional legal order regarding the positioning of labor rights, inserted, it is worth remembering, in the Title of Fundamental Rights and having the employment relationship as the presupposition of its application; and if there was also no change regarding the existence of the Labor Court, a specialized court, created precisely to enforce labor rights, there is no legal basis to support this abrupt “change of direction” by the STF.

If there is a conflict, established from 2023 onwards, between the decisions of the Labor Court and the STF, it is because the STF, without any constitutional support, saw fit to redefine the competence of the Labor Court and disregard the legal precepts relating to the recognition of the employment relationship.

If, as Minister Gilmar Mendes says, the STF is being “crowded” with complaints against Labor Court decisions that recognize the employment relationship in a given service provision (2.566 complaints out of a total of 4.781) it is because the STF itself, by accepting and upholding the first complaints, even without any constitutional or infra-constitutional support and greatly exceeding its own competence, especially because such analysis involves an evidentiary examination, it encouraged the filing of such complaints.

It is not the judges and labor judges who are “overloading” the STF, therefore. In fact, what these numbers reveal is that labor judges continue to respect the Constitution and that the STF, in an unexpected and arbitrary way, simply stopped doing so, which is extremely serious, as it would be up to the STF to be the guardian of Constitution and what we have, concretely, is an inversion of values, that is, it is the labor judiciary giving a tough message to the STF that disrespect for the Constitution will not go unnoticed!

And Minister Gilmar Mendes goes further and starts, in a rude way, to attack the institution, alluding to “whims of the Labor Court”, when it recognizes the employment relationship “between legal entities and between app workers and platforms like Uber ”; and that the STF “wastes time” annulling such decisions.

Now, if the Minister were aware of the legal precepts that, based on constitutional norms and numerous international treaties linked to Human Rights, underlie Labor Law, he would not make a statement as gratuitously offensive and devoid of legal basis as this one. . Such thinking is what makes many people waste time in their lives, including the STF itself, and has caused enormous suffering to those who are forced to sell their workforce in Brazil and are faced with a reality in which their minimum rights, provided for in laws and the Constitution, are spontaneously respected.

Quite the contrary, what you find in the world of work is the widespread use of multiple hiring formulas that fraudulently evade labor rights, accompanied by a systematic, media-supported attack on these rights – and, lately, with increasingly explicit institutional support. .

It should also be noted that the various cases, to which the complaints presented to the STF are related, concern an alleged “disobedience” to the Court's understanding in which the validity of outsourcing was recognized, including in the company's core activity. It turns out that outsourcing, as seen in the case in which the STF's understanding was established, is not a counterpoint to the employment relationship but rather a form of shifting the employment relationship, from the borrowing company, to the providing company. The outsourced worker continues to be employed, but not by the company considered as the borrower, but rather by the company contracted to provide the services, in a type of triangular relationship. The employment relationship in cases of outsourcing persists, in any case.

When a company hires a worker as a legal entity, it is not outsourcing, therefore. And if the evidence in the case file (and only in this case and not automatically or on a “whim”) leads to the conclusion that this hiring was done to circumvent the application of labor legislation, that is, that it was based on fraud and this is verified in the evidentiary analysis of the records, it is the responsibility of the Labor Court, under the terms of art. 114 of the CF and based on articles 2, 3 and 9 of the CLT, declare the illegality, recognize the employment relationship and order the payment of labor rights applicable to the facts.

Furthermore, given the public order repercussions that the application of labor rights involves, it is up to the labor magistracy to determine the issuance of a letter to the Public Ministry of Labor, so that the investigation of irregularities can be carried out, when they involve homogeneous individual, collective or public documents, as well as to the Public Prosecutor's Office, for assessment regarding the possible practice of crimes of falsification of public documents (art. 297, § 3º, II, and § 4º, of the Penal Code) and evasion of social security contributions (art. 337 -A of the Penal Code).

Another report, coincidentally published on the same day, on the legal website Jot, shows that the situation is even more serious when the argument for “invalidation” (since there is no legal name for this action by the STF) of labor decisions is that companies can choose the type of legal relationship they will have with employees workers, that is, with or without labor rights.

As stated in the article: “the ministers state that the Court has precedents recognizing the possibility of hiring under work regimes that go beyond the CLT”. (…) Despite this, Labor magistrates continue to condemn companies that opt ​​for a different regime and order them to pay the labor rights, provided for in the CLT, to these workers.”

However, the Federal Constitution expressly guarantees workers a list of minimum rights and there is no normative provision that links the effectiveness of these rights to agreement by companies, because, obviously, this would not happen. No wonder, in fact, labor rights are inalienable, they are binding norms and express precepts of public order linked, including, to Social Security and the social function of property, free enterprise and the economic order.

As if this were not enough, as the same report announces, under the presidency of Minister Luís Roberto Barroso the situation tends to get worse, as the casuistic and selective “creation” of specific mechanisms to intervene in an even more incisive way in the actions of the Labor Court is predicted. (which takes us to an explicit logic of a State of exception).

It turns out that, specifically, if the labor judiciary, in view of the evidence produced in the case, identifying fraud, does not declare the illegalities verified, does not recognize the employment relationship and does not condemn the defendant to comply with labor legislation, it will, in fact, be in breach of its functional duty.

But, as can be seen from the content of the reports mentioned, labor judges are respecting the laws and the Constitution. It's time for the STF, in labor matters, to do the same!

*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 (Editors Studio). [https://amzn.to/3LLdUnz]


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