By JORGE LUIZ SOUTO MAIOR*
O Estadão and its partners want the law and legal and jurisdictional institutions to be subordinated to their will
It is not now that the newspaper The State of S. Paul engages in activism against the rights of the working class and against the Labor Court. For a long time, in fact, it was identified as “a press organization that was an unbreakable bastion of liberals from São Paulo for several decades and a staunch critic of Getúlio Vargas”.[1]
In April 1957, the newspaper was willing to publish, almost in full, the content of the speech given by professor of economic law José Pinto Antunes, in the class at the opening of the academic year, with the theme “The Robot and the legal economic consequences of its use”,[2] precisely because the aforementioned professor, to the newspaper's delight, after citing several examples of production units in which workers were replaced, in whole or in part, by machines, advocated the end of labor law.
In 2004, after acting strongly in defense of the extinction of the Labor Court, throughout the process of “reform of the Judiciary”, Estadão was not satisfied with the final result of the reform (EC 45/04), which not only did not extinguish the Labor Court, but also expanded its jurisdiction.
In the editorial on November 22 of that year, the journalistic company did not hold back and said: “Among the various innovations introduced by the reform of the Judiciary, the one that caused the greatest surprise occurred in the scope of the Labor Court. Instead of being emptied as expected, having been created decades ago under the inspiration of Italian fascism and being today out of step with the needs of the economy, the institution, thanks to the action of its powerful lobby in the Senate, especially during the vote on the highlights, managed to emerge quite strengthened.”
In 2007, when Amendment 3 was being debated, which prevented the work of labor inspectors, the newspaper, trying to contribute to the approval of the Amendment, published, in the February 12, 2007 edition, the report “Brazil is champion in labor actions”, the call for which is even made on the front page of the newspaper. In the report, based on the position of “experts” (in fact, two, a former minister, Almir Pazzianoto, and an economist, José Pastore), seeks to spread the idea that if there are many actions in the Labor Court it is because the legislation instigates conflict, creating a disincentive for companies to hire.
On April 08, 2009, the newspaper published an editorial entitled “TRT's activism can worsen social effects”, resuming the attack on the Labor Court, for its role in preventing collective layoffs promoted by Embraer. In this authentic business propaganda, the newspaper advocates that “decisions like these can produce social effects diametrically opposed to those expected by the judiciary. This is because, by preventing employers from laying off staff to adapt to market realities, 'protective' injunctions can compromise companies economically, eliminating all the jobs they offer.”
It is worth remembering that, at that time, Brazil only did not go bankrupt due to the brake imposed by the Labor Court on collective layoffs, as there was a very strong movement encouraging employers to promote collective layoffs and it is well known – or whether it should know – how much mass unemployment is disruptive to the economy, even more so on the periphery of capital.
When the CLT turned 70 years old – and many saw the date as an opportunity to attack labor rights again, saying that the CLT was “old”, because it was “seventy years old” – the Estadão did not stay behind and published an article by Gustavo Ferreira, with the title “Consolidation of Getúlio Vargas’ Labor Laws turns 70”. In the text, an attempt was made to reinforce the completely distorted view of the historical reality that the CLT was inspired by Labor Charter of Mussolini, suggesting that labor rights have a fascist origin.
The total lack of knowledge about the history of labor legislation in Brazil reflected in the approach was, however, evident when the author stated that “With the CLT, workers obtained rights such as the Guarantee Fund for Time of Service and 13th salary” . But, as we know (or should know), the CLT dates back to 1943 and the 13th salary was only legally instituted in 1963, during João Goulart's government, and the FGTS, in 1967, during the period of the military dictatorial regime. .
In 2016, during the coup d'état, the body used several mechanisms to promote even stronger attacks on labor rights and the Labor Court. On May 1st, the newspaper publishes an article by Almir Pazzianoto Pinto, with the title “The old and anachronistic CLT”, repeating the same litany that the CLT was the work of the dictatorship of Getúlio Vargas, with fascist inspiration, etc.
In 2016, it joined a pool of journalistic companies, to disseminate “fake news” on issues relating to labor rights and one of the most used devices was exactly this to give a voice to authorities and personalities historically linked to the defense of the interests of capital.
O Estadão, in fact, promoted a Forum (“Modernization of Labor Relations” – public event), to reflect such speeches, especially from the then President of the TST, Ives Gandra da Silva Martins Filho, ardent defender of the retraction of rights as a way of leveraging the economy and staunchly critical of the actions of labor judges who still maintained their “stubbornness” in applying Labor Law. The Minister's speeches were frequently reproduced by the newspaper.[3]
On November 05, 2016, the editorial of Estadão, “A new job”, makes a public defense of Ives Gandra Filho and, to this end, makes a serious offense against the Labor Court and labor judges in Brazil, establishing the assumption that these professionals know nothing about labor law work, but, at the same time, denying the very existence and relevance of labor law, since, in its authoritarian and undemocratic conception, there would be “an evident maladjustment in the way the State deals with labor relations, which is a serious obstacle to the economic and social development of the country” and that, therefore, it would be up to judges to deny the validity of labor laws, which protect workers, and create a new, more flexible right, as the CLT would already be very “old”…
On January 28, 2017, the newspaper, without any commitment to reality or demonstration of minimal respect for democratic institutions, calls the Public Ministry of Labor “ideological” for speaking out against the labor reform intended by the federal government, denouncing it as unconstitutional. As the editorial suggests, proposals to change labor legislation cannot even be questioned. Uninformed and misinforming, the Estadão maintained that the view of the Public Ministry of Labor would be “peculiar”, when, in fact, it reflected the majority position of labor doctrine and jurisprudence.
On October 09, 2017, a new editorial, this time aimed at trying to corner the labor judiciary, so that it submitted, automatically, that is, without any questioning, to the suppression of rights imposed by the labor “reform” law, already approved and about to come into force. For Estadão, judges could not apply other laws and other legal precepts present in the legal order. They should, in fact, corroborate the idea of retracting rights and, to achieve this result, it would even be worth disregarding some explicit terms of the reform law itself that could lead to a different direction – even though the editorial did not say this expressly.
Now, on November 14, 2023, the newspaper returns to the ring, to accuse the Labor Court of committing an act of “rebellion”.[4] But this time, the journalistic company went too far, as it expressly apologized for illegality, attacked an institution of the Republic and harmed the honor and moral integrity of labor judges.
Initially, the text bounces off the fake news disseminated by Minister Luís Roberto Barroso, in 2016, that the Labor Court is the “world champion” of “labor liabilities”. Better not to comment...
But, afterwards, things became much more serious, because, in a single blow, he disregarded the very legitimacy of labor legislation; attacked the jurisdictional power of the judiciary; transformed rights into “cost”; treated workers as adventurous opportunists; called labor judges conniving and encouraging abusive practices; positioned companies as victims of this collusion between the Labor Court and workers; stated that the Brazilian economic crisis, unemployment and informality are the fault of the Labor Court.
Rarely have you seen so much lies, distortion and violence in a single paragraph! Here it is: ““Historically, in labor legislation and, above all, in Justice, an ideological conception has thrived according to which every relationship between employer and employee involves some type of constitutive injustice. Among labor judges, the idea prevailed that their mission would be to correct these injustices. The almost zero burden for unfounded litigation, combined with the generosity of the judges, has widespread the perception that it is always worth it for the worker to file a complaint. The cost of the litigation industry is not only in the congestion of Justice, but in the disincentive for companies, especially small and medium-sized ones, to employ more people. In their eagerness to do 'social justice' to each worker, activist judges collectively harm workers, imposing barriers to job creation, encouraging the perpetuation of the informal market and, as a result, driving away investment and slowing down growth.”
According to extract from the version of Estadão, if there were no labor law and Labor Court, labor relations would be fully egalitarian, unemployment and informality would not exist and Brazil's economy would be in virtuous and constant growth.
The problem, for the ideological version of Estadão, is that the recommended situation already occurred during the prehistory of labor law, when labor relations were regulated by the contractual precepts of civil law and what was seen was: a high number of accidents at work; unlimited working hours; pauperized wages; children aged 5 to 12 in factory work; women working until a few days before giving birth, etc.
The bet that this would no longer happen today is not sustainable, not even as rhetoric, since uberized work, which, for the time being, in general, goes beyond labor legislation, is there to demonstrate what working conditions are like when the Economic power finds no institutional limits.
But, the most serious thing is the authoritarian and undemocratic assumption of the speech, since it simply disregards the prevalence of the Federal Constitution, where labor rights are expressly provided for and where the Labor Court was also established, precisely to enforce this legal order. For the Estadão respect for the legal-democratic order expressly enshrined in the Constitution is just an ideology.
The offensive editorial goes further: it accuses labor judges of “social justices” and also creates the version that the reform law is above the Constitution, spreading, with the support of two versions, the concept that it is not up to labor judges the application of the Constitution because, after all, what really counts is the reduction of the “Brazil cost”. The Federal Constitution would be a mere detail.
The text says: “In order to reduce the 'Brazil cost', the 2017 labor reform eliminated obstacles from sclerotic legislation. Legislators defined, for example, that concrete collective agreements prevail over generic laws, standardized intermittent and remote work and imposed costs on unfounded litigation. Even after the STF has decided on the constitutionality of measures like these, the accused social vigilantes continue to decide contrary to the law. 'The highest body of specialized justice, the TST (Superior Labor Court), has placed some obstacles in political options endorsed by the Executive and Legislative branches', stated STF minister Gilmar Mendes”.
“The idea of this group of judges is, through jurisprudence, to pressure to change the labor reform, but he is not a legislator', assessed labor law professor at Fundação Getúlio Vargas Paulo Renato Fernandes da Silva. 'So, they start to declare everything unconstitutional and deny the application of labor reform. Where will this all end? To the Supreme.' In 2018, one year after the reform, complaints against TST decisions accounted for 41% of actions in the STF. Today it is 54%.”
Now, it was said countless times, during the undemocratic process of drafting and approving the labor “reform” that the legal text presented in the National Congress was full of legal inconsistencies, contradictions, technical aberrations and unconstitutionalities. But the political and economic powers did not even want to hear about the need to establish a more serious and in-depth debate on this matter, as they considered that it was necessary to take advantage of the period of democratic rupture – the duration of which it was not possible to predict – to introduce into the legal order labor a text of law that served its most immediate interests (and nothing beyond that). However, as it was a text written by many hands and in a hurry, the result was the creation of an authentic “legal labyrinth”, as I reported in a text written in January 2018.[5]
Thus, when they accuse the Labor Court of creating “obstacles” for the application of the “reform” law, what is promoted is the idealization of a law that, in reality, does not exist. And, if that is not enough, there is still an attempt to place this law (idealized, forged in the imagination) as being the center of the entire legal system, that is, the nucleus from which all other precepts would derive.
The most curious thing is that the STF itself, in several decisions, even in a shameful way (recreating the legal norm), has already declared the unconstitutionality of the “reform law” in several actions: ADI 5938 (pregnant women's work and unhealthy work), ADI 5766 (ordering the complainant, beneficiary of free justice, to pay, including the proceeds from the case, the defendant's legal fees); ADI 5867 (interest and monetary correction of labor credits); ADI 6050 (limiting table for convictions for moral damage); Extraordinary Appeal (RE) 999435 – Topic 638 (collective layoffs without any conditions); ARE 1.121.633 – Topic 1046 (negotiated under legislation) and ADPF 324 – Extraordinary Appeal 958.252 (unrestricted outsourcing).
Note that both in the main themes covered in the editorial of the Estadão, “negotiated over legislation” and “unrestricted outsourcing”, what prevailed in the STF’s position was not exactly what had been enshrined in the “reform law”.
Now, for the STF, what is negotiated will only prevail over what is legislated when “absolutely unavailable rights are respected” (Theme 1046). And outsourcing, in turn, cannot be an instrument to make working conditions precarious and annihilate labor rights, as a way of reducing the “Brazil cost”, as indirectly presupposed by the “reform law” and expressly defends the newspaper The State of S. Paul. According to the STF decision, the abusive exercise of outsourcing must be avoided and to this end “the principles that support the constitutionality of outsourcing must be made compatible with the constitutional standards for the protection of workers, with the contractor being responsible for: (i) verifying the suitability and the economic capacity of the outsourced company; and (ii) respond subsidiarily for non-compliance with labor standards, as well as social security obligations (art. 31 of Law 8.212/1993)”.
So, what does the Estadão and its partners advocate, that is, the application of the “imaginary law” of “reform” is a rationally unfeasible project, the result of a completely alienated mental process forged from legal aberrations, and which not even the STF, at least until here, he had proposed to accomplish.
But economic power, especially in countries located on the periphery of capital, is not willing to make concessions and is not satisfied with maintaining institutional limits on the exploitation of labor.
And this is where the greatest danger lies, because, in order to advance the objective, two extremely harmful attitudes are foreseen and which are even more serious in the scenario of recurrent attacks on knowledge and affronts to democratic institutions: first, that of pretending not to know how the “reform law” was drafted and approved and how much it is fraught with legal problems; and, second, to arbitrarily reconstruct the legal order and the constitutional text itself, so that everything appears coherent and cohesive.
In the first aspect, the problem is how much turning a blind eye to historical reality and constructing rhetorical arguments to create a convenient version of reality contributes to the movement of denial, brutality and hatred that is spreading throughout the world and, above all, in Brazil. , in the last years. Opportunism and dissimulation are foods of irrationality and bestialization and the Estadão and their partners present themselves, therefore, as instruments and diffusers of this movement.
In the second aspect, the seriousness is of carrying out an institutional attack on the democratic order. Now, at this moment, to reinforce the purpose of not allowing magistrates to recognize the disparity between the constitutional order and the terms of the “reform law” and even the unconstitutionality of its drafting and voting process, the Ministers of the STF, having already, in several decisions, especially from 2011 onwards, promoted a partial reading of constitutional norms, to boost and legitimize the process of retracting labor rights, now, giving in to the ever threatening demands of the mainstream media and power economic, are being led to the point of rewriting, in their own way, the Federal Constitution and, even, disrespecting their own previous understandings given (which, although they were already destructive, were somewhat embarrassing).
Thus, the unconstitutionalities of the law are no longer evident, but this is because, even with disregard for the unequivocal literalness of the articles, the content of the democratic and civic Constitution of 1988 has been modified, in order to make it a document similar to the precepts anti-democratic and neoliberal policies that guided the “reform”.
It should be noted that in the specific case of outsourcing, which is at the center of the supposed “rebellion” of the Labor Court, the STF itself, as already mentioned above, made it clear that outsourcing would not be an obstacle to the application of “constitutional norms for the protection of worker” and that it would be up to the service provider to “verify the suitability and economic capacity of the outsourced company”. It happens that in situations where Ministers of the STF, due to monocratic decisions in Constitutional Complaints, what we have, firstly, is not exactly an outsourcing, as the discussion around the recognition of an employment relationship when the worker constitutes a Legal Entity for the provision of services there is, concretely, a direct contracting and not an intermediated relationship, and through the disguise of this type of contracting what is intended is, precisely, to prevent the application of all constitutional norms protecting the worker.
The precedent used by the Ministers, therefore, does not apply to the situations in question and, if applicable, the effect would be the opposite of that which has taken place, as this type of “outsourcing” (which has nothing to do with outsourcing, repeat ), would be being used abusively, with the aim of removing the application of constitutional norms for the protection of workers.
The dizzying increase in the number of Constitutional Complaints brought to the STF against Labor Court decisions during this year 2023 is a symptom that the Labor Court is still fulfilling its constitutional duty of applying Labor Law in factual situations in which illegality of non-compliance with labor laws is identified, contrasting with the position of some Ministers of the STF who, in the decisions of these Complaints, have exceeded the constitutional limits of their jurisdictional power to, as stated, rewrite the Constitution, thus denying citizenship, dignity and social rights for the working class.
It is important to say that there is neither in the “reform law” nor in any other constitutional or legal provision, any possibility of an employment relationship being defined as employment or as self-employment by the mere “contractual option” of the parties, even if in falsified perspective of a worker who “outsources” himself, especially when one bears in mind the effects of public order – contributory, welfare and tax – that flow from the employment relationship, and, also for this reason, labor rights are irrevocable on the part of the male and female worker.
And, in the express terms of the Constitution (art. 114), the Labor Court is the body of the Judiciary responsible for processing and judging actions arising from labor relations, above all, to define, in the specific case, whether or not they are , present the elements that configure the employment relationship, preserved, as such, in section I, of art. 7 of the CF and outlined in articles 2 and 3 of the CLT (articles that, in essence, were not changed even by the labor “reform”).
So, dear journalistic company, it would be highly recommended that before issuing a legal “opinion”, with an offensive and lying tone, you try to understand the national legal order and the national justice system a little better.
And what can we say, then, about the final offense brought in the evil and aggressive text? “Legal uncertainty, with all its consequences for the credibility of Justice and the business environment, is proliferating. The reform should reduce the market for professional litigants, but the Labor Court insists on keeping it profitable, contributing to perpetuating one of the largest, most expensive and slowest judiciaries in the world. And also one of the most irrational. Labor judges have every right to cultivate their conception of social justice and wish for it to be consolidated into law. For this, like every citizen, they have their vote. If they want to go further, they can abandon the toga and take up activism or run for positions in the Legislative and Executive branches. But using chicanery to reverse the decisions of elected representatives by force of their hammers is something that profoundly undermines the Democratic Rule of Law. Just as every citizen, including legislators and government officials, has the obligation to comply with judicial decisions with which they disagree, judges have the obligation, even against their will, to apply the laws decided by elected representatives.”
Perhaps just that, of course, the newspaper has every right to express its opinions, but if it wants the law and legal and jurisdictional institutions to be subordinated to its will, it should abandon the rhetorical discourse of defending laws and democracy and assume once and explicitly what it actually proposes for its objective to be achieved: a coup d'état.
Now, that Estadão, considering its entire history, would act in this way is even predictable, but that it would do so with the support of the Federal Supreme Court is not possible to conceive. So, given the serious attacks promoted in the editorial against an institution of the Republic, with the STF speaking!
*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]
Notes
[1] AGGIO, Alberto; BARBOSA, Agnaldo; COELHO, Hercídia. Politics and society in Brazil (1930-1964). São Paulo: Annablume, 2002, p. 28-29)
[2] ANTUNES, José Pinto. The “Robot” and the legal economic consequences of its use. Magazine of the Faculty of Law of the University of São Paulo, São Paulo, v. 52, p. 250-260, 1957. Available at:http://www.revistas.usp.br/rfdusp/article/view/66272/68882>
[3] (ALVES, Murilo Rodrigues. Available at: http://economia.estadao.com.br/noticias/geral,presidente-do-tst-ve-desbalanceamento-da-justica-em-favor-dos-trabalhadores,10000085271.
[4] (https://www.estadao.com.br/opiniao/a-rebeldia-da-justica-do-trabalho/)
[5] (https://www.conjur.com.br/2018-fev-27/souto-maior-reforma-trabalhista-labirinto-juridico/).
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