Democracy Party?

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It is important to address the right not to work on election days, to defend and guarantee the right to vote and the citizenship of male and female workers

It is reported that there is much greater abstention in the elections of the “poor people” and among these, considering, above all, the recessive and regressive policies of social rights in recent years, there are certainly male and female workers integrated into formal and “informal” employment relationships. ”.[1]

It is argued that the situation in question is due to the greater difficulty these people have in going to the polling places. It so happens that if the polling stations respect, in principle, the proximity to the voter's residence, the most objective difficulty for the exercise of the vote is verified when male/female workers are obliged to go to the place of work, which, almost always, they are far from the residences and respective polling stations of these citizens.

It is, therefore, extremely important to deal with the right not to work on election days, a topic that has long been neglected by labor practice, both in the academic and jurisdictional spheres, as well as in the field of union action.

Since the 2002 elections, I have insisted on the relevance of this issue, which I believe is essential both for the democratic process and for guaranteeing citizenship to male and female workers.

In these terms, I ask permission to reproduce below part of the arguments launched in a text published at the time:

“The election days for President of the Republic were defined in Article 77 of the Federal Constitution, as being the first Sunday of October, in the first round, and the last Sunday of the same month, in the second round.

Law no. 9.504 of 1997 added that elections for President and Vice-President of the Republic, Governor and Deputy Governor of the State and the Federal District, Senator, Federal Deputy, State Deputy and District Deputy would be held simultaneously (sole paragraph, item I).

On election days, Brazilian society, as they say, experiences the 'party of democracy'.

However, what has been verified is that a large number of workers, especially in large factories and large supermarket chains, have not been invited to this party. For them, election day is a workday like any other, plus the 'burden' of still having to vote, or justify voting.

'Democracy Party', yes, but for the privileged ones who didn't have to work, because for the workers who are already used to being excluded from the democratic process, maybe everything happens as if it hadn't happened. This is without considering, of course, the even more desperate situation of those who are out of work.

And are there legal grounds for denying subordinate work on election day? Yes there are, and many.

Incidentally, the legal basis for reaching the conclusion that demanding the work of employees, in non-essential activities, such as those present in commerce in general, on the crucial day of democracy, are an exposed fracture in the Constitution.

The democratic rule of law was defined in Article 1o of the Federal Constitution. This State is based on citizenship (item II) and on the social values ​​of work and free enterprise (item IV). Now, effective citizenship is only exercised with the free exercise of the vote. Voting, by the way, is configured as a way of preserving 'popular sovereignty' (art. 14 of the CF).

Furthermore, under the terms of the aforementioned provisions, free enterprise must preserve social values ​​and the exercise of citizenship is evidently one of them.

Let it not be said that there is economic interest, including that of workers, with the opening of trade on that day, to increase wage income and increase jobs. Even respecting the arguments adduced, since democracy is made with coexistence with opposites, the fact is that there is a certain confusion of situations. Closing trade in one day (or two) every four years cannot, under any circumstances, generate the alluded effect.

By the way, under this same prism, putting the economic and political perspectives in the same balance, and complying with another constitutional principle, that of proportionality, one cannot fail to recognize that the difficulty created for the exercise of the vote, with the requirement to work on the of the election, causes much more damage to democracy than the closure of commerce, on that day, causes the health of the country's economy.

It is customary to maintain that work on holidays was allowed by analogical interpretation of Law n. 10.101/00 (art. 6o.). Even if such an analogy were possible, which is not believed because Sunday (which the law deals with) cannot be confused with a holiday, even for a mathematical reason, since while there are 52 Sundays in the year, holidays are much rarer, the fact is that the focus of the question is deviated, since we are not talking about a simple 'holiday', but the day when, every four years, the nation's plans are decided by popular sovereignty ('all power emanates from the people, who exercises it through elected representatives or directly, under the terms of this Constitution' – sole paragraph, art. 1o., CF).

Furthermore, it is not a matter of advocating the closure of trade, but the impossibility of using employees, as a restricted way of guaranteeing these citizens the free exercise of their vote, also preserving, in a certain way, their dignity (item III , article 1o., CF) and his private life (item X, art. 5o., CF).

It should also not be considered that a work system specially planned for such a day could, in some way, guarantee the right to vote, either by allowing the worker to withdraw from work to vote, returning later, or by setting working hours that allow him to vote before or after the exercise of his work.

This, effectively, matters little, because what is at stake is a very high value for popular sovereignty, that is, the vote, which cannot be restricted under any pretext.

Concretely, even with the adoption of such precautions (if followed, effectively, which is not discussed here, but which from a more in-depth point of view could even be, since labor claims in which claims are made are not rare unpaid remuneration for holidays worked and unpaid overtime), what can reasonably be assumed is that working on election day creates a difficulty in voting that can be configured as insurmountable in several situations.

There are not few, for example, workers who exercise their activity in one city and vote in another; workers who vote in a place far from their workplace, since the polling place is connected to their residence; workers who do not have their own means of transportation, etc.

Voting, therefore, even if it can be exercised, ceases to be an instrument of integration of the person to the rule of law and becomes yet another instrument of oppression, obfuscating and even annulling citizenship.

As a matter of fact, in the specific case of the last national elections on October 06, 2002, perhaps by irony or by bad luck, there were many cases of delay in voting, with the formation of long queues and long waiting times”.[2]

The fact is that everyone who defends democracy must also defend and guarantee the right to vote and the citizenship of male and female workers!

*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).




[2] SOUTO MAIOR, Jorge Luiz. Work on National Election Day. Amatra II Magazine. Association of Labor Magistrates of the 2nd Region, v. 3, no. 7, p. 52-54, 2002.


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