The downgrading of social rights

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By JORGE LUIZ SOUTO MAIOR*

There have been several movements and mobilizations to recover the democratic order, except labor “reform”

In a recent decision, the Minister of the STF, Dias Toffoli, classified Lula's arrest as “one of the biggest miscarriages of justice in the country's history”. As said by the Minister: “Due to the gravity of the appalling situations presented in these records, added to the many other decisions issued by the STF and also made public and notorious, it would now be possible, simply, to conclude that the arrest of the complainant, Luiz Inácio Lula da Silva, until It could be called one of the biggest miscarriages of justice in the country’s history.”

On August 21, the TRF (Federal Regional Court) of the 1st Region, in Brasília, maintained a decision that filed an action of improbity against the former president in the case of “fiscal pedals”, as the opening of budget credit became known. without congressional approval.

On August 28, the PT bench in the Chamber presented a project to symbolically annul the impeachment of former president Dilma Rousseff, suffered in 2016. According to the news: “The objective is to repair the recent past, by correcting one of the biggest legal mistakes -politicians perpetrated against a serious, honest woman dedicated to the public cause, Dilma Vana Rousseff, when she was unfairly sanctioned the loss of her position as President of the Republic.”

The fact is that there have been several movements and mobilizations, with media and institutional repercussions, to recover the democratic order. This is how the election for the Presidency could be held and the elected candidate effectively sworn in. The coup attempt had no effect and, currently, some of the actors responsible for the attacks on public buildings, institutions and democracy are being punished.

In other words, the defense of democracy is on the agenda of the day, even generating the creation of unlikely heroes; and the public people most directly affected are being repaired, in a way.

But much needs to be done for full historical reparation, as these “corrections” are solemnly disregarding the enormous suffering to which millions of Brazilian workers were subjected in the same period, that is, from 2016 onwards, when attacks on democracy began to take place.

A suffering that, moreover, was deepened during the pandemic, given the disregard for life promoted by the then President of the Republic and his necropolitics, admittedly adopted, which victimized thousands of workers, especially black men and women, the majority in the most precarious activities – which, contradictorily, were declared “essential”, so that the services they provide would not be paralyzed.

In fact, also in this aspect the projected “corrections” have disregarded the suffering experienced by millions of Brazilian men and women (workers), as the immediate political interest and media insertion of certain agents is prevailing over the public interest and the postulates of primacy of Human Rights. This is because, instead of prioritizing action aimed at the effective application of civil and criminal sanctions against the former President, for the abuses committed against the lives of millions of people during the pandemic, what we see is contentment with the “ineligibility” of the former President, due to the commission of the crime of embezzlement in the jewelry case.

This, although ideally still fair and necessary, does not achieve the purpose of minimal reparation for the victims of government neglect, serving, more precisely, the delight of some and the electoral aspirations of others. And, if seen as a single and satisfactory goal, it tends to sweep under the carpet all the numerous and serious administrative and legal irregularities committed during the pandemic and which claimed thousands of lives.

Taking further steps back, it is essential to remember that the excesses of Lava Jato, the 2016 coup and Lula's arrest and ineligibility had purposes that went far beyond these, which, in fact, were instrumental to them, and which came into effect with the Michel Temer's abrupt rise to power and were complemented by the election of a representative of the extreme right, committed to this project.

And what project, for what purposes, was this? In short, imposing a general reduction in the cost of labor, to meet the need to preserve the profit rates of large multinational companies, which evidently presupposed reducing legal labor guarantees, weakening worker unions, undermining the strength working class policies and remove the State and the Labor Court from labor relations, in addition to opening greater space for private initiative in terms of essential public services.

And, concretely, all these objectives were achieved and are still in force today. And the worst thing is that, without this perception of cause and effect, all the repercussions of these legal aberrations and political excesses are being legitimized by the same agents who present themselves as defenders of democracy and legal regularity.

This is how, therefore, it remains unscathed: the PEC of the end of the world (EC 95/17); labor “reform” and pension “reform”.

It is important to realize that all these legislative initiatives (imposed from top to bottom, at a time of clear democratic rupture) are at the service of a social project based on: privatization of public services; increase in the power of capital in labor relations; weakening of unions and the political strength of the working class; prioritization of the profit rate of large companies; precarious working conditions.

This project has victimized millions of workers and can be seen in the data regarding: (a) of the recurring lowering of the average salary; (B) the increase in informality; (w) the increase in cases of work in conditions similar to slavery, also a result of outsourcing; (d) increased suffering at work; (It is) increase in accidents and deaths at work.

Not to mention the thousands of lives lost during the pandemic period, resulting from institutional neglect and also the precarious working conditions.

Yes, there are millions of people (workers) who suffered and still suffer the consequences of the legal aberrations and political abuses committed in Brazil from 2016 onwards, and we cannot, therefore, talk about correcting course until we have eyes on this reality and the effects produced since then are not reversed.

So that there is no doubt about the links mentioned above, it is important to refresh our memory a little about the historical process in question, especially because the chronology of the facts are, in themselves, revealing.

So let's see:

– 2003 to 2015: there is a movement of multiple jurisprudential changes favorable to the interests of workers; – 2012: the CNI (National Confederation of Industry), as a reaction to this movement, publishes the document “101 Proposals for Labor Modernization”, directly and explicitly attacking labor advances; – 29/10/15: PMDB announces its “A Bridge to the Future” program, in which, even as part of the government, it offers itself as an alternative to the economic sector, promising to carry out labor and social security reforms;

– 02/12/15: Eduardo Cunha accepts the request for impeachment by Dilma Rousseff; – 04/12/15: impeachment begins to be processed in the Chamber;

– 14/12/15: FIESP and CIESP expressly express themselves in favor of the impeachment, realizing the opportunity to achieve the reforms promised by Michel Temer; – 05/04/16: the CNA speaks out in favor of impeachment; – 14/04/16: the CNI and CNT speak out in favor of the impeachment; – 16/04/16: the President of FIESP, Paulo Skaf, in an interview with the newspaper The State of S. Paul, announces: “With the resumption of confidence [read: with Dilma's impeachment and a Temer government], the economy will resume growth, and it won't take long. It is necessary to give credit to the president who takes over. (…) There was no way to solve the economy without changing the government.”

– 17/04/16: the opening of the process of impeachment; – 12/05/16: Michel Temer assumes the Presidency, on an interim basis; 21/05/16: less than 10 days after assuming the Presidency, Michel Temer announces the “labor reform”;

– Subsequently, in the context of a series of advances and setbacks by the government in relation to the implementation of reforms and in order to “convince” the government and politicians of the urgency of the “reforms”, it is possible to verify repeated news publications by politicians involved in Lava Jato, especially when the issue of reforms appears to be lacking strength (see, in this regard, the text: “How Lava Jato boosted labor ‘reform’”, by Jorge Luiz Souto Maior, published on 18/04/21;

– 15/06/16: PEC 241 proposed (the “PEC of the end of the world”); -10/12/16: information leaks to the press (directly and committedly interested in the “reform”) that Michel Temer’s name had been mentioned 43 times in Odebrecht’s statements; – 13/12/16: PEC 214 approved; – 15/12/16: Constitutional Amendment nº 95 (EC 95) published. Ceiling on public spending, at the expense of investment in public services – will be in force for twenty financial years; – 17/12/16: the Temer government (through the Minister of Labor) announces that it will return to the topic of labor “reform”;

– 22/12/16: a large platform is held at Palácio do Planalto, to announce the presentation of the labor “reform” bill (and the Lava Jato news leaves the scene); – February 2017: the Bill in question begins to be processed; – 11/07/17: less than six months after the start of the process, the labor “reform”, altering (replacing and adding) more than 200 provisions in the CLT, all in favor of business interests, is definitively approved in the Federal Senate;

– In the vote in the Senate, the speech by Senator Romero Jucá is notable, who recognizes the unconstitutionalities of the PL, but nevertheless approves it: “To ensure the approval of the text, which changes important points of the Consolidation of Labor Laws (CLT), the Government leader and rapporteur of the labor reform in the Plenary, senator Romero Jucá (PMDB-RR), once again stated that the Palácio do Planalto must promote adjustments in PLC 38/2017, whether by veto or provisional measure.” https://www12.senado.leg.br/noticias/materias/2017/07/11/aprovada-a-reforma-trabalhista);

– 12/07/17 (the next day, therefore): As a kind of trophy and gratitude for the objective achieved, Moro publishes Lula’s conviction sentence; – 13/07/17: great ceremony is held in Planalto, when the government sanctions the “reform” bill; – 14/07/17: Law nº 13.467/17 published – while the media only highlights the conviction of the former President; – 02/08/17: the complaint against Michel Temer is rejected in the Chamber of Deputies (and no investigation against Temer continues).

– From then on, what is evident is the rush to avoid Lula’s election, so as not to put the approved labor “reform” at risk and also to move forward with the project surrounding the approval of the pension “reform”, which has not yet been completed ; – 24/01/18: with remarkable speed, Lula’s trial takes place in the 2nd instance (TRF4), with confirmation of the conviction: – 05/04/18: STF Decision (6×5) – Rejection of Habeas Corpus – Authorizing the arrest of the patient (Lula), even without the decision becoming final, breaking a Brazilian legal tradition; – 07/04/18: Lula is taken to prison; – 1/9/18: the TSE rejects the registration of Lula’s candidacy.

What has the effect is the election of a candidate who is committed to carrying out the Social Security “reform” and maintaining and even deepening the labor “reform”, which he did, including, during the pandemic through MP 927 and the MP 936, later reproduced in MP 10.045 and MP 10.046.

This president elected to continue the process of democratic rupture started in 2016 begins on its first day (01/01/2019), through a Provisional Measure, extinguishing the Ministry of Labor. And, on November 13, 2019, he offers the economic power the “reform” of Social Security.

It is worth emphasizing that as a result of the labor “reform”, workers are suffering and a huge number lost their lives in the pandemic due to precariousness: – weakening of unions; – obstacle to access to justice; – punishment of workers who went to court with costs and fees for the employer’s lawyer; – legal mechanisms for increasing working hours, including without payment for the respective overtime; – reduction of rights through negotiation (negotiated over legislation); – facilitation of layoffs; – expansion of outsourcing; – intermittent work; – end of ultraactivity; – influence on the stance of the labor judiciary (besieged by the mainstream media and the strengthening of economic power), in order to make economic interests prevail; – naturalization of fraud and labor illegalities.

In the wake of this legal shock to the legal protection of workers and in opposition to the normative postulate of Social Law of setting limits to economic power, there have been many decisions, within the scope of the STF, authorizing the retraction of labor rights, such as the expansion of outsourcing ( ADPF 324 and RE 958252); the negotiated over legislated (Theme 1046); the enshrinement of obstacles to access to justice (ADI 5766), in addition to the purposeful removal (in monocratic decisions – RCL 59.795, for example) of the Labor Court in resolving conflicts pertinent to the recognition of the employment relationship.

It is certain, therefore, that the resumption of the democratic order, supported by respect for the Constitution, cannot be completed if this level of lowering of social rights is maintained, which are, as seen, the cause and effect of all the legal aberrations and political excesses committed from 2016 onwards.

And as additional information to demonstrate the link between democratic ruptures, prioritization of business interests and labor “reform”, This week the news was released that one of those who called himself “father of labor reform” was removed from his position because he remained in a virtual environment in which businessmen were plotting the attacks on January 8th. What happened is, in itself, quite enlightening. But there are others…

The concrete fact is that keeping the terms of the “reform” unchanged represents a way of legitimizing all the illegalities and political atrocities committed. It is the same as saying that attacks on democracy can be supported if the effects are those that serve the interests of capital and serve to further oppress the working class. It is important to remember that the democratic rupture to enforce the labor “reform” came to be expressly defended by one of the media outlets that claims to be a defender of democracy.

What's more: without reversing the situation, for whatever reason (congressional difficulties, electoral convenience, etc.), what is promoted is a kind of historical alliance with all the conservative and exploratory forces that came together to impose the impeachment of Dilma Rousseff and Lula's arrest. Thus, there is no legitimacy in these characters' reparation arguments if they are not intertwined with the repeal of the effects produced on the working class in the same context.

The weakness in defending the Constitution, with regard to the interests of the working class, is, moreover, what has favored institutional and democratic weakening and even undermined the political forces necessary to fulfill the Social State's promise of raising social conditions , economic and human of workers.

See, for example, how, even after nine months of the popularly elected government taking office, it was not possible to conduct a political process to implement a regulation that guarantees delivery people and drivers who provide services to companies that own digital platforms the recognition of the employment relationship and all other labor rights.

Much less has it been possible to understand the importance of appointing, to the STF, people whose history is, in fact, linked to the defense of the interests of the working class, and, above all, a black jurist, so that the process of bring to the Judiciary and other institutions the worldview of black people, historical victims of the violence of economic power and conservative forces.

It is urgent and necessary for social forces to mobilize in this sense, adopting as an absolute priority the uncompromising agenda of revoking the labor “reform” and social security “reform”.

The complete repeal of the “reform”, as a minimum form of reparation for millions of people who were (and still are) victims of the 2016 coup, the arrogance of capital, authoritarian outbursts and recurring judicial errors, is the basic and essential point so that this whole story can be cleared up.

Otherwise, that is, if the labor “reform” is maintained, even after the 2022 electoral victory and with the implementation of measures that repair Dilma and Lula and punish those who attacked democracy on January 08, the exploiters, the opportunists and the declared enemies of the working class will continue to be the big winners of this entire process.

A similar situation, with less serious tones, occurred in the period from 2003 onwards, in which governments and all legal and political institutions, especially focused on implementing the Constitution, in which labor rights are stated as Fundamental Rights and integrated into the principles of progressiveness and non-regression, were not able (or even worried about) reversing the situation of precarious work imposed in the neoliberal period of the 1990s.

Now, faced with a situation that is much more serious from the point of view of the effects and much more evident in terms of the undemocratic origin of the legal, economic, social and political degradation imposed on the working class, and in the context in which forces unite to repair personal damage and democratic upheavals experienced, it is inconceivable that history will repeat itself.

This time it will not be a mere tragedy. It will be a big farce!

*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).


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