The Sacrifice of the Workers

Image: Elyeser Szturm

By Jorge Luiz Souto Maior*

The recent labor “reform” imposed a breakdown, due to financial suffocation, of the union organization, which urgently needs to be reinvented, overcoming the limits of professional and economic categories.

The Coronavirus, according to some, is the work of the devil against divine order; for others, an invention by China to dominate the world, or by the US to stop China's economic advance; for so many others, depending on their respective ideological position, nothing more than a creation of world economic forces to favor the adoption of neoliberal shock policies, or an orchestration by the left, to generate a systemic crisis; not to mention those who disdain the issue, saying it is nothing more than media hysteria, and then greet people in a public place, only to appear shortly after in a press conference wearing masks, but taking them off all the time.

The important thing is that it is a real phenomenon that, regardless of where it started and how it was conceived, has already claimed thousands of lives around the world and that, left unchecked, could lead humanity to chaos. Faced with the situation, humanity calls for reason!

It is not with opportunism, dissimulations, simulacra, disguises, ideological disputes, fanaticism and contempt for knowledge and logical and altruistic reasoning that it will be possible to find a solution to the problem, which, of course, in each country, still adds to so many others. diverse and peculiar. In the case of Brazil, the social issue was neglected for a long time and now, with the pandemic, there is an opportunity to realize that what happens in Rocinha or Paraisópolis affects those who live in Leblon or Jardins.

In recent Brazilian history, it took advantage of given political circumstances to carry out a project that would make greater profits possible for large economic conglomerates, but through the dissemination of precarious work formulas, destruction of public services, including health and social security. , carried out even with contempt for public policies, favoring the formalization of predatory privatizations. All in the name of “modernity”, such “administrative efficiency” and a miraculous “economic success”.

Now, in the face of the concrete and indisputable effects of the pandemic, it is already possible to understand that the public health service is fundamental to everyone's lives; that the precariousness of work, especially in times of real crisis (contrary to what was said, as they used the economic crisis – falsified – as a basis for introducing precarious forms of work) leads people to the total loss of survival conditions, which ends up interfering with everyone else's lives.

Note that the government itself, which encouraged precarious work as a way to save the economy, now says it will “give” money to those who have been precarious and those who are in informality (but the chances of structural success of the measure are minimal)[I].

In this new context, accelerated by the Coronavirus, the role of the State, as a guarantor of the lives of all citizens, and of public policies, necessary for the fulfillment of the State's obligations, is recovered, and it is undeniable and fully solid to discard the belief (almost medieval) that the mere sum of the individual and freely expressed wills of economically unequal people, whose living conditions, as can be seen, produce reciprocal results in terms of survival, is capable of being taken as the basis of life in society.

The watchwords, again, are: solidarity, social responsibility of the political and economic sectors, reaffirmation of democratic practices and institutions, with reinforcement of popular and classist forces, whose voice and interests essentially need to be heard and attended to.

Each one of us, individually, therefore, plays a highly relevant role of exercising the mind in the search for reasoning that allows us to visualize what is happening around us and, thus, contribute to the search for solutions.

The least that is expected, in terms of taking reason as a guide for thinking and acting, is coherence. The lack of coherence reveals the fallacies of the arguments and their real purposes, demonstrating, consequently, the ineffectiveness of a proposed measure, which, in the case of pandemics, is not just a problem of inefficiency, but rather represents a serious , irresponsible and, why not say, criminal act that promotes the aggravation of problems.

It is within this context that the position of the Special Committee of the National Congress that, in the midst of this crisis, on March 17th, approved the MP 905 report as incoherent and, therefore, criminal[ii], which institutes the so-called Green and Yellow Card, which conducts work relations, in a generalized way, to the level of total informality, even more so knowing, as we know or should know, that the adoption of measures like this generate negative impacts on public revenue, whose budget is essential, precisely, for the adoption of social health policies.

But, even more serious is the government's announcement, released on March 19, under the conniving silence of the mainstream media, that it will "allow a cut in wages and working hours by half"[iii], even meeting an express demand from the National Confederation of Industries (CNI)[iv].

Now, until a few days ago, as a way of justifying labor “reform”, there was talk of “modernization” of labor relations, marked by non-intervention by the State, the elimination of “paternalism”, the need to honor the free will of women parties and, now, what is strongly proposed is State intervention, going beyond collective bargaining with trade unions, in order to use the power of the State to enforce the will of one of the parties, that of the companies, and that, it is said, for a matter that would be of national interest. The inconsistency is that, now, what is wanted is for State intervention to prevail over what is negotiated, which, incidentally, is simply despised.

The coherence, it must be recognized, is in the assumption that both in the previous proposals and in the one presented here, the supposed defense of the superior interests of the economy takes place through the sacrifice of the workers. In the first case, workers, faced with material conditions favorable to capital, were “free” to give up their rights. In the second, they are obliged to bear these sacrifices.

The issue is that, from a legal point of view, both propositions are wrong, given that the proposal's complementation, providing that workers who earn up to 2 minimum wages and who have their wages reduced receive 25% of unemployment insurance[v] it does not remedy the legal irregularity and, furthermore, reinforces its inconsistency, since, concretely, it represents a paternalistic attitude towards the use of public money to make life easier for companies in their economic and legal relationship with workers.

In the context of no serious economic anomalies, what prevails is the principle of progressivity, which underlies the use of labor legal institutes in the pursuit of improving the social and economic condition of workers, with positive effects on the economy and life in general . The legally established minimum threshold serves as a parameter to prevent individual actions and the localized exercise of economic power from being used in a negative way, forcing the entire production chain towards competitiveness that is destructive of social cohesion.

For situations of structural and, therefore, real crisis, in which the system as a whole is on the verge of chaos, as it appears at the present time (and not in the case of merely speculative and cyclical crises), the legal order even provides for the possibility reduction of rights, but always through collective bargaining.

In a text published in January 2009, I presented the milestones of this negotiation, as can be seen in[vi]

In short, collective bargaining (and only collective bargaining), establishing at least a proportional reduction in the earnings of directors and shareholders, set for a specified period, could, in theory, propose an emergency reduction in wages and working hours. Collective bargaining would also be important so that the crisis situation was not used as a way of definitively reducing the level of labor rights and, so that the previous situation was resumed.

And so that a negotiation could be reached in this sense, it would not be appropriate to invoke the provisions of articles 501 to 504 of the CLT, to give the employer the argument, suppressing the necessary good faith that must be the basis of all legal negotiation, that, without the effectuation of the reduction agreement, it could carry out the collective dismissal of its workers with payment of half the indemnity to which they would be entitled in the event of unjustified termination, behold, these are some of the very few provisions of the CLT that have not been changed since 1943 and , as the supporters of the “reform” said, are obsolete, not least because they have lost legal effectiveness in the face of the express terms of the Constitution, which requires collective bargaining for the emergency and temporary retraction of rights, which cannot, therefore, be given by unilateral initiative of the employer, even with regard to the termination of the bond or being used as a demonstration of power to impose its will on the workers, thus vitiating the legal transaction that arises therefrom.

The concrete problem is that in the recent labor “reform”, the economic sector imposed a breakdown, due to financial suffocation, of the union organization, which therefore urgently needs to be reinvented, even surpassing the limits of legally determined professional and economic categories. , since the validity requirement of collective agreements is the existence of legitimate unions, which, in fact and in law, represent the effective interests of workers. In the case of reduced earnings in a crisis situation, an agreement should necessarily be approved in a democratic and regular meeting, also providing for the conditions for resuming the social and economic levels applicable at the time of formalizing the adjustment, as it is not of mere resignation, due to the state of extreme necessity, which is in question. But the destruction of unions does not make it possible to envision a generalized minimal democratic procedural legitimacy for this type of negotiation.

With the labor “reform”, the minimum bases of the legal relations between capital and labor in Brazil were destroyed, which now favors an even greater worsening of the economic situation and social cohesion. Therefore, the revocation of the step taken is required and not to repeat the error and promote its deepening.

Who, with the truth expressed in their heart and mind, wants to be assisted by precarious workers, without technical training, poorly paid and without institutional and lasting commitments to the service provider? That's right, but it was this type of service and social, economic and human condition that the “reform” generalized and which some, irresponsibly, in the midst of the crisis, want to take advantage of, spreading the risks even further.

Witnessing the concrete effects of a full-fledged crisis, it is necessary to overcome the strict limits of the aforementioned legal provisions and remember that the basic legal bond that unites human beings in society in the Social Democratic State of Law, instituted after the two world wars, is the solidarity, from which the principle is derived that everyone, individually, has responsibility for the lives of others, since, as expressed in the explanatory statement of the Universal Declaration of Human Rights, in order to speak of dignity, freedom, justice and peace, it is necessary to recognize all human beings as “members of the human family”, with equal and inalienable rights, hence the primary obligation, inscribed in art. 1 of the same Declaration, which states: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

That is why it is not appropriate, in a time of pandemic, to invoke the subjective right to increase the suffering of others, imposing unemployment or a reduction in wages. Acting in this way even frustrates any expectation of preserving humanism in human beings, in addition to not being a legally valid attitude. Companies, moreover, have the minimum social responsibility of not spreading chaos, leading people to unemployment or imposing salary reductions as a condition for maintaining employment, without any type of negotiation adjustment in this regard. Put more clearly, maintaining employment and preserving wages constitute the minimum social, legal and economic responsibility that is required at this time, and, for this purpose, it is possible to conceive state aid, notably to small companies, as already verified, including, In other countries[vii].

And more legally and humanly unsustainable is the attitude of some employers, whose enterprise or service is not linked to activities necessary for the preservation of life, of demanding the continuity of services, exposing the lives of workers (and, above all, outsourced workers) at serious risk. ), as has been verified, for example, in some administrative sectors of the University of São Paulo and in some courts.

Therefore, it is not only sensitivity and compassion that are spoken of. It is of social legal obligations imposed on all, above all, in times of effective humanitarian crisis. In the bundle of obligatory relationships, it is not up to the State to encourage practices that suppress solidarity, even more favoring the imposition of greater sacrifices on those who, historically, have already been sacrificed enough.

History teaches that in moments of deep crisis the worst thing that can be done is to go down with it. It is worth remembering that the foundations of the Welfare State and the legal forms aimed at the production and distribution of wealth were established at a time of profound crisis for humanity. Thus, reducing this level does not serve the plan to overcome the crisis. Therefore, we need to establish new ways of distributing historically and socially constructed wealth and not impose sacrifices on those who conceived it, as there is a human being behind the workforce and, consequently, everything that is produced or performed.

Moreover, state policies imposing sacrifices would only have some legitimacy argument if they did not turn, selectively and discriminately, to a single social group, maintaining the patterns of social inequality from which the crises feed back.

Thus, any attempt to reduce the effects of the crisis, assuming the need for individual sacrifices (social and economic), could only – from a strictly legal point of view – be carried out with the generalization of impositions, demanding greater sacrifice from those who care most. benefited from the way in which social relations were historically institutionalized.

Definitely, it is not even possible to think about imposing or even encouraging the sacrifice of wages to outsourced workers, domestic servants and other workers and servants in general, while the earnings of the President of the Republic, senators, deputies, ministers of State, Supreme Court ministers, magistrates, banks, large economic conglomerates and a whole structure that, over time, instrumentalized the production and preservation of social inequalities and favored the predatory exploitation of work, which, as the pandemic reveals and Guedes recognizes, it is the true source of all value, because without work the economy collapses[viii].

In any case, the retraction of social achievements cannot guide us, not least because this will only serve to increase collective suffering and further aggravate the elements of the crisis. The enormous economic difficulty that many employers (large, medium and small) are going through at this moment needs to be faced with responsibility, so that the solutions sought can extract the social, philosophical, economic, mental and sincere bases that are essential to any type of project that aims to give viability to human life on Earth.

The Coronavirus has launched an enormous challenge for all of us, namely, overcoming the stage of alienation that we have been led to in the consumer society, competition and selfish and reified individualism. Among the various existing risks, there is that of losing the chance for this reflection and, with that, seeking solutions to our problems through the sacrifice of others, in addition to blaming others for the situation, in order to stimulate even more disruptive and instigating attitudes of conflicts that, at the same time, promote a greater distance from the much-desired humanism that is expected to exist in all human beings. How to give concrete and true effects to solidarity, humanism and reason? Here's the challenge.

We must overcome this challenge, otherwise it will have overcome us, whatever the numerical result of casualties. And in order to promote reason, it is necessary to listen, understand, reflect, tolerate and express oneself with respect and theoretical sincerity and practical coherence. unilaterally and violently, reducing workers' earnings (both in the private and public sectors), suppressing the now necessary social dialogue.

Legal, socially and economically valid and responsible public action requires measures that focus on the distribution of historical, socially constructed wealth that has accumulated in the hands of very few. Measures that should even be adopted in a context of generalization, viewing economic restrictions in relation to those who (especially large companies, banks and high echelons of public and private structures) occupy privileged positions in the social bosom (rooted, including, in a historic inequality ).

We must, above all at this moment, say no to social regression, not least because this logic of retracting rights, in an opportunistic way, will tend to become perpetual. And all this considering the strictly legal and objectified point of view, taking as a parameter the preservation of this mode of production and the society that is consequent upon it, without entering, therefore, another highly necessary discussion around the real viability of this model for the human life, above all, in view of the verification of its ecological, economic, social, political and rational limits that, with the pandemic, leap to the eye, notably when, even in a serious context, opportunisms linked to selective interests and the preservation of inequalities insist in conducting public policies and are not bothered by the suffering of others.

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







[vi]. “It is totally wrong, therefore, to consider that collective bargaining agreements and agreements can, without any content evaluation, reduce legally provided labor rights, simply because the Constitution provided for the “recognition of collective agreements and agreements” (item XXVI, of art. 7) and expressly allowed, in this way, the reduction of wages (item VI, art. 7), the compensation of the workday (item XIII, art. 7) and the modification of the parameters of the reduced workday in uninterrupted relay shifts (item XIV, of article 7).

Now, article 7, in its 'caput', makes it clear that the items it lists are workers' rights, that is, they are directed to a specific subject, the worker, and cannot be understood, consequently, as some type of to protect the economic interests of employers. In addition, the norms are undeniably aimed at improving the social condition of workers.

It cannot be seen in the precepts set out in the items of art. 7th the legal foundations to provide employers with the possibility of, through an exercise of power, inducing workers, even if collectively organized, to accept the reduction of legally provided labor rights, even more so when they have a constitutional basis and are inserted in the context of the Rights Humans.

Item VI, of art. 7, for example, which creates an exception to the principle of salary irreducibility, allowing the reduction of salary, and nothing more than that, through collective bargaining, is inserted in the context dictated by the 'caput' of the article, that is, that of improvement of the worker's social condition and it cannot be imagined, obviously, that the mere salary reduction represents an improvement in the worker's social condition. Thus, the device in question cannot be understood as authorizing a reduction in salary just because it is formally included in a collective instrument (agreement or convention).

The treated norm, consequently, only has effect when the measure is considered essential for the preservation of jobs, meeting certain requirements. Law no. 4.923/65, still in force, even if part of the doctrine does not recognize it, as it does not contradict the Constitution, quite the contrary, it establishes the conditions for collective bargaining that provides for a reduction in wages: a maximum reduction of 25%, respecting the value of the minimum wage; duly proven economic need; determined period; corresponding reduction in working hours or days worked; reduction, in the same proportion, of the earnings of managers and directors; authorization by general meeting in which non-union employees also participate.

The Bankruptcy and Judicial Recovery Law itself, n. 11.101/05, which is unquestionably in force, is based on the assumption of respect for the full employment policy, the social valuation of human work and the obligation that free enterprise must ensure a dignified existence for everyone, in accordance with the dictates of social justice.

Judicial recovery is a legal mechanism, whose execution is the responsibility of the State, through the Judiciary, and aims to preserve companies that are in economic difficulty not induced by disrespect to the legal order and that are able to develop within the established standards by the system, so much so that one of the necessary requirements for the approval of the recovery plan is the demonstration of its 'economic viability' (item II, of article 53, of Law n. 11.101/05).

Article 47, of Law no. 11.101/05, is clear about these fundamentals: 'Judicial recovery aims to make it possible to overcome the debtor's situation of economic and financial crisis, in order to allow the maintenance of the production source, the employment of workers and the interests of creditors , thus promoting the preservation of the company, its social function and the stimulus to economic activity.' (emphasis added)

It is easy to verify, therefore, that such law is not aimed at the mere defense of the private interest of a specific debtor. The law did not grant a subjective right to those who owe it, regardless of the origin of the debt and the concrete possibility of its payment. It did not, therefore, establish a kind of right to “default”, because without the concrete possibility of maintaining the company's activity based on such postulates, it must be led to bankruptcy (art. 73, of Law n. 11.101/05) .

What is in the law is the defense of companies in a perspective of public order: stimulus to economic activity, for the development of the capitalist model, preserving jobs and, in accordance with the Constitution, visualization of the construction of social justice.

The logic of the legal system that is directed to the maintenance of the productive activity of the companies is the preservation of the jobs, admitting as means of judicial recovery, the 'salary reduction, time compensation e workload reduction, through collective agreement or convention (art. 50, item VIII, of Law n. 11.101/05).

To this end, it is also required the 'exposition of the concrete causes of the equity situation' of the company and 'the reasons for the economic and financial crisis' (item II, of article 51), in addition to the 'demonstration of its economic viability' (item II, of art. 53), among several other requirements, it is important to highlight that the collective dismissal of employees, in compliance with art. 7, I, of the Constitution, is not listed as a means of recovery of the company (see article 50).

As can be seen, the legal order does not authorize the conclusion that the ways of resolving labor disputes can be used as instruments for mere reductions in workers' rights, and it is important to highlight the foundations that are specific to it, as highlighted above: a) setting specific parameters to implement, in concrete terms, normative precepts of a general nature referring to humanistic values ​​affirmed in historical experience; b) progressively improve the social and economic conditions of the worker.”



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