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Alternative ways to stimulate the economy and the labor market should be sought, promoting a new social renegotiation based on effective solidarity

By Jorge Luiz Souto Maior

On the night of March 27th, the National Journal presented a report with which he intended to disseminate the need to publicly thank workers who remain active, exposing their lives at risk, to save millions of other people. The workers were presented as national heroes. And several reports from other information vehicles joined the chorus.

Very fair. But it is necessary to go much further. Initially, I reiterate what I said in the article “MP-927: From pandemic to pandemonium", in the sense of formulating a thank you to the workers who, due to the fact that their professions are linked to activities essential to the preservation of life, continue to work, putting their own lives (and those of their families) at risk, to preserve the lives of others. millions of Brazilian men and women, including: nurses; doctors; courier(s) in general, especially through apps; gas station attendants; building gates; attendants in pharmacies, hospitals, bakeries and supermarkets; journalists; cleaners; drivers; loaders(s); garbage collector(s); rural workers; caregiver(s) etc.

But, as was expressed in the Manifesto “For the responsible confrontation of the social and economic problems generated by the new coronavirus”, signed by several entities and personalities from the world of work, “society owes them not only this gratitude, but also the recognition of their human condition and their legitimate rights, mainly labor and social security (today and always).” The point is that there are proper ways, from a legal point of view, to effectively and concretely carry out this acknowledgment.

1. It must be remembered that these workers, in their vast majority, are people who over the years have been excluded from any nation project, disregarded in terms of the distribution of the wealth they contributed to produce and deprived of access to the means necessary for their progression Social. They were, so to speak, invisible workers, on whom the exploitative characteristics of dependent capitalism had a greater impact, fed back by gender oppression and racial discrimination. In fact, if we look closely (and now, finally, this is more evident), these people are poor, black and, in large part, black women, with a history of barring the minimum fundamental social rights, notably: quality public education, full and efficient public health, and housing.

2. In the face of even the evidence of the imminence of economic chaos generated by the suppression of work, it is essential to recognize, also for the necessary reformulation of the bases of a viable social organization, that work is the source of all wealth. It is inconceivable that the social division of labor results in the accumulation of almost 30% of all socially produced wealth in the hands of 1% of the population [1].

3. It is essential to remember that the mainstream media that today formulates public thanks to these workers and workers is the same that, months ago, unconditionally supported the “reforms” (labor and social security), which removed these people’s rights, causing them to increase their suffering and income reduction, to feed the coffers of large international economic conglomerates, reproducing colonizing and destroying neoliberal formulas of a minimal project of a Brazilian nation.

4. Taking the historical and structural role of work in society into a broader perspective, it is also important to understand the importance of all workers whose activities were compulsorily interrupted at this time.

5. Taking into concrete effect the formulated thanks and recognition of the importance of the efforts and dedication of all these workers and workers, rejecting the adoption of the measures proposed by MP 927, since, in short, they place on the workers and workers the cost of the crisis, imposing unemployment, reduction of wages and rights, in addition to increasing suffering and risks.

6. Remove all practices of abuse and opportunism, such as those that, disregarding the gravity of the moment and the historical, structural and human relevance of the work, seek, in addition to what is projected in MP 927, legal solutions for the economic problems of companies through the reduction of rights and the increase in the suffering of male and female workers, highlighting, in this sense, the appeal that some have been making for the application of articles 486 and 501 of the CLT, which would allow, respectively, reversal to the State of the payment of compensation for the cessation of employment contract; and suspension of payment of judicially signed agreements.

Regarding these claims, it should be remembered that the CLT has recently been the target of intense attacks, being accused of being old. This attack was based on untruth, since of the 921 initial articles of the CLT, only a few were still in force, in the way they were proposed, in 1943. . 486, whose last wording dates from 1951, and art. 501, whose wording has remained unchanged since 1943.

It so happens that these devices were not accepted by the Federal Constitution of 1988, which does not bring any reference to these possibilities of unilateral action by the employer in labor relations. In any case, the established humanitarian crisis cannot be considered “factum principalis” and much less a “act of God”. The humanitarian crisis demands collectively institutionalized solutions and not individual actions by the different employers, in the sense of seeking, each one for himself, the solutions to his problems, even more disregarding his social function and imposing the spread of unemployment, the suffering of others and the general worsening of the economy, to the detriment of everything and everyone.

Judicial agreements, moreover, reflect facts prior to the crisis, having as their origin illegalities committed by the debtor, and it is not up to them, now, to invoke the legal order to get rid of the effects of the illegalities committed, even more so because the effect of this supposed potestative right would be to punish who depend on receiving the agreement to survive. And as is known, or should be known, not even potestative rights can be exercised with the aim of causing harm to others, even more interfering in the orbit of their fundamental rights.

Any extension of the term would depend, therefore, on the express agreement of the creditor/plaintiff, even depending on judicial ratification in a new agreement necessarily based on proof of economic difficulties which, even in the face of the crisis, cannot be assumed, not least because for the situation is well evaluated, it is necessary to consider the gains obtained in recent years. Those who accumulated wealth over the years (often even due to non-compliance with legal and tax obligations) cannot now, opportunistically, invoke the crisis and a legal provision from 1943 to obtain judicial favor and punish, once again, the claimant.

7. It is crucial to visualize that the solutions that can be minimally effective for the responsible confrontation of the great problem that we are experiencing pass, obligatorily, through formulas (also with the aid of the State) that aim to guarantee jobs, salary and income of workers. The most efficient state aid, I believe, is the one that seeks to allocate public funds directly into the hands of those who need it most (such as the minimum income) and who, thus, can survive and even feed the production chain and the labor market. It is possible, in any case, to conceive financial aid (with subrogation) to small companies that, demonstrably, are experiencing insurmountable and proven financial difficulties, on condition that jobs are preserved and that they have a history of respect for labor rights.

8. Alternative ways to stimulate the economy and the labor market should be sought, promoting a new social renegotiation based on effective solidarity: State intervention, taxation of large fortunes, increased taxation on inheritance, donations and redistribution of accumulated wealth .

9. Within all of this, so that public acknowledgments have some real and true meaning, the urgent repeal of labor and social security “reforms” is imperative, remembering that since the labor “reform”, in force since November 2017, there has been a considerable increase in the number of people in informal work (in January 2020, 24,5 million) and that of the jobs created, 15% went to intermittent work [2] (and that today, certainly, they are without work and income), not to mention of the 4,7 million discouraged people and the “informality within the formality” (employment without rights) practiced in employment relationships with a formal contract, which is due to the lack of a Ministry of Labor as an independent body to monitor labor relations. work.

10. Finally, revitalize social dialogue (and, in particular, trade union organization – articles 8 and 9 of the CF) and preserve democratic structures in full operation, but with effective respect for the social pact signed in the 1988 Constitution and the Treaties International Human Rights.

To promote the emancipation of the human condition much more would be needed. For now, on an emergency basis, it is the least that should be done to formulate a sincere thank you to the workers for saving our lives!

*Jorge Souto Maior is a professor of labor law at the Faculty of Law at USP.

Notes

[1] https://brasil.elpais.com/brasil/2017/12/13/internacional/1513193348_895757.html

[2] https://www.metro1.com.br/noticias/brasil/80602,apos-reforma-trabalhista-15-vagas-criadas-no-pais-sao-para-intermitentes

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