“We will not comply with the law, period”

Christiana Carvalho's photo


The pressure from business sectors for non-compliance with the rules of the Federal Constitution

In the news published, on January 06, 2021, on Panel SA, part of Grupo Folha, with the title “Hotels and services ask for an extension of the reduced working hours benefit”[1], it is said that economic sectors intend to pressure the government to continue the legal measures that made it possible, in 2020, to reduce wages and suspend employment contracts.

The pretension, expressed at the beginning of 2021, even before having any assessment of the current situation, already under the effects of the economic recovery (albeit fraught with immense sanitary irresponsibility), as well as the verification of the possible impacts of the start of vaccination (scheduled, albeit not seriously, for the end of January 2021), serves to demonstrate that reducing production costs by withdrawing workers’ rights is the only thing that certain Brazilian “entrepreneurs” can think of, being certain that, in their view, any reduction is never enough.

Remember that we entered the pandemic, in March 2020, already under the effects of the 2017 labor “reform”, which included all (and a few more) legislative changes intended by the economic sector, on the grounds that with the new legislation, modernizing labor relations, whether they would have, finally, the ideal conditions for the country's economic progress, accompanied by social development, this provided by the generation of at least 2 million formal jobs (ie, jobs with rights).

The “reform”, as is known, only favored specific economic sectors in the precise sense of greater accumulation of wealth, without any social return, without job creation and with a general worsening of the economic situation.

Even so, in the pandemic, the only thing that could be thought of was to deepen the same logic of cost reduction, which was implemented through MPs 927 and 936 (the latter converted into Law n. 14.020/20). And every time the government felt shaken, by yet another unusual pronouncement by the President, to recover political stability and regain legitimacy in the eyes of the economic sector and media segments, the Minister of Economy announced his intention to create the so-called “Portfolio Green and Yellow”, which, translating, is nothing more than an employment relationship without any labor rights.

We started 2021 and the realization is that the generalized suffering that affected everyone in 2020, and with much greater intensity the working class, being even more serious in relation to the periphery, women and, mainly, blacks and black women, was not able to stimulate any change in this exploratory, indifferent and excluding posture that marks the way work is seen in Brazil.

The news in question, by the way, is elucidative of the recurrent strategy used by dominant sectors to reach their objectives in this area. First, they exclude your subjectivity. Thus, they do not formulate pretensions arising from their desires, but solutions that are inexorable in the face of external elements, of an economic nature, and which are outside their domains. The economic crisis or hardship is what forces them to act the way they do and they do, as it is tried to be exposed, even contrary to their will. As a result, they present themselves as victims of the situation and this victim position is reinforced when their “just” and “inevitable” claims are not immediately met by governments. At this moment, in fact, they move from victimization to blackmail, saying that if their pretensions are not accepted, they will be forced to inflict greater suffering on the working class and potentialize the social and economic difficulties of the nation, promoting mass unemployment. Finally, if none of this works (and even when it does), they present the ace up their sleeves in which they clearly and unequivocally express that they will disrespect the state institutionality, creating their own. That's when they say: so, let's not comply with the law, period.

It is worth noticing that all these elements are present in the news in question: a) demand for the reduction of labor rights to solve their own economic problems; b) reduction imposed by external elements, unrelated to its will; c) victimization due to possible misunderstanding by the government; d) threats with collective dismissals; and, e) assumed attitude of disrespect for the law, which would only have been valid in the strict aspect of the benefits granted to them.

As explained in the news, one of the interviewees, in order to pressure the government to maintain the possibility of reducing wages and suspending contracts, says that one of the “problems” of the law “is that companies benefiting from the measures have an obligation to keep employees for an equivalent period or indemnify them. This should lead to lawsuits given the difficulty of making payments.” Translated into kids, what he expressly said is that if they are not met in their demand, they will not comply with that part of the law and that the disastrous effect of this will be the expansion of lawsuits in court. The most serious thing is that one of the main companies in the sector represented by the interviewee, which had around 12.000 of its employees affected by the measures in question, recorded a net profit of 45 million euros in the first nine months of 2020.[2]

The curious thing is that at the time of the media massacre to justify the labor “reform”, an attempt was made to spread the idea that the high number of labor lawsuits was the result of the ease of access given to workers, who, thus, promoted true “legal adventures”. ” in the face of the poor employers, disregarding the reality that the vast majority of labor complaints were about unpaid severance pay. At the root of the problem was the repeated, widespread and assumed disrespect for labor legislation, adopted even as a tactic for the enterprise, but, with strong media funding, it managed to shade itself. Now, at least the origin of labor claims is clear.

The question is that if before many employers were no longer afraid of labor claims, whose result, historically, was nothing more than (except in exceptional situations) a condemnation to pay – years later – the amounts that should have already been paid (plus and interest and monetary correction), today this position of comfort for the commission of labor illegality is even greater, since the work process, given the terms of the “reform”, has become more aloof, risky, costly and inaccessible to workers and, now , not even monetary restatement and interest on arrears will be added to the debt from the date of filing of the labor claim, as advocated by a recent STF decision (ADCs 58 and 59).

The concrete and indisputable fact, however, is that these employers experienced a state benefit that was thus borne by society as a whole, so that they could reduce their employees' wages by up to 70% or effectuate the suspension of employment contracts, and this without the consideration of having to prove losses experienced in the period and even without having to account for the profits accumulated over the last few years.

And they already knew, from the outset, that the measures would be valid until, at most, December 31, 2020, and that the condition, legally established, for the acquisition of the benefit, would be the maintenance of the jobs of the affected employees, during the same time of application of the measures.

Thus, the same people who have been saying that the "modernization" of labor relations was justified by the need for people, individually, without paternalistic action by the State, to assume their contractually established obligations, now come to the public to assume that they will fail to comply with the commitment signed with the whole of society regarding the preservation of jobs, trying to transform this into just another “simple” breach of the labor law, which concerns the individual interests at stake – to, thus, even relying on the economic need of the worker( a), obtain a “good settlement” in any future labor claim.

But there is nothing “simple” about this story. It is an extremely serious issue of public assumption surrounding the practice of an illegal act, which even interferes in the interest of all citizens, as it concerns the destination and proper use of the fund public. Not complying with this part of the pact represents, legally, the obligation to return, with its own resources, to the State all the value that was passed on.

What the news brings, therefore, is an explicit affront to the solidarity pact, but this type of betrayal, it is worth recognizing, is something the economic sector has become accustomed to. It is enough to remember that the Welfare State, which was the formula adopted by the capitalist countries to engender a new, inclusive relationship in the post-Second World War, was later strongly attacked, under the accusation of constituting an obstacle to economic interests. The Brazilian Federal Constitution of 1988 is a clear example of this posture of “forgetting” the pacts formulated.

So, it wouldn't even be surprising if this was the attitude adopted by many companies benefited by Law n. 14.020/20 – some of which, even receiving money from the public fund to impose wage sacrifices on workers, showed an increase in profit rates in 2020 –, not least because, after all, in Brazil, respecting constitutional and legally guaranteed labor rights is a matter of radical, if not “communist”, and what was consecrated was a kind of right of the employer to break the labor law.

This was always serious, but it was never perceived as such. It is urgent, however, that all statements of incitement to illicit practice be seen as they actually are, an attack on the legal order and the Democratic State of Law, not least because it is from this vice – which runs without identification, reprimand or punishment – ​​that have fueled the repeated and increasingly forceful attacks on democratic institutions promoted by the head of state himself[3].

It is extremely important to realize, once and for all, that the various aggressions against the legal order are of the same power and some, when they are carried out without punishment and even with media support, feed others, even more so when some, in order to become effective, are backed by alliances that legitimize and strengthen institutional coups.

Symptomatic of this pernicious and promiscuously compromising alliance with the constitutional order is the coincidence between the irresponsible inertia of the federal government to acquire vaccines and syringes and to promote a public, horizontal and republican vaccination campaign, and the opportunity that this posture opens up for action of the private sector in the sector[4], which has not been seen, as far as we know, in any other country. Incidentally, it is also symptomatic of the options chosen in Brazil during the pandemic that today more than 200 thousand deaths have been reached, at the same time that the Bovespa index reached its highest historical mark.

In short, the above news, broadcast as just one more, among many others, chapters on how we deal with work, demonstrates that if democracy in Brazil is at risk, there are many actors in this story, since the democratic order is indissolubly associated with the realization of Social Rights, Human Rights and Fundamental Rights and, in essence, there is no democracy without the consecration of a pact whose basis is the effective, ethical and sincere respect for the lives of others based on a concrete standard of solidarity Social!

Thus, everyone who, in some way, with arguments elusive of reality and offensive to reason and history, militates against Social and Human Rights or naturalizes institutional attacks on these rights, conspires against the democratic order and feeds back contempt for knowledge and disrespect for life, encouraging suffering, pain and barbarism.

*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).


[1]. Available in: https://www1.folha.uol.com.br/colunas/painelsa/2021/01/hoteis-e-servicos-pedem-extensao-do-beneficio-de-reducao-de-jornada.shtml

[I] Prosegur reports consolidated net profit of 45 million euros in the first nine months of 2020. Prosegur. Available in: https://www.prosegur.com/en/media/article/press/Prosegur-obtiene-un-beneficio-neto-consolidado-de-45-millones-de-euros.

[ii]. https://www1.folha.uol.com.br/poder/2021/01/se-brasil-tiver-voto-eletronico-em-2022-vai-ser-a-mesma-coisa-dos-eua-diz-bolsonaro-apos-invasao-ao-capitolio.shtml




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