By JORGE LUIZ SOUTO MAIOR*
In Brazil, a good hero is a dead hero
During the pandemic period – which has not yet ended – there were many recognitions regarding the essentiality of the services provided by health professionals. The population explicitly showed their gratitude to these people with gestures and words. There were countless times when health professionals found themselves the targets of applause, even being treated as heroes, this because, even working in the most unfavorable conditions possible, subjecting themselves to enormous risks, they managed to save millions of lives.
Health workers (as they are mostly women) in health, notably nursing, always said that they appreciated the applause, but that more than applause they wanted their rights as workers to be respected and, above all, that their salary floor and the limit of 30 hours of work per week, which had been persecuted for a long time, were finally assured (http://www.confetam.com.br/noticias/pl-da-enfermagem-mais-que-aplausos-trabalhadores-querem-direitos-093f/).
After years of struggle and suffering, which multiplied in the pandemic, on August 4, 2022, Law n. 14.434, which granted nurses, nursing technicians, nursing assistants and midwives a salary floor.
It was widely announced that the floor in question would be R$4.750,00; But this value only refers to nurses. For nursing technicians, the base is BRL 3.325,00 (70% of the base for nurses); for nursing assistants and midwives, BRL 2.375,00 (50% of the basic wage for nurses).
These are, therefore, wage values well below the relevance of the function performed and the conditions in which it is exercised. The current minimum wage is R$1.212,00 and about working conditions, everyone who has had to go to hospitals or health centers knows what they are talking about.
In any case, the timely report by Maria Helena Machado is very useful so that reality does not leave our memory so quickly: “Recent surveys carried out by Fiocruz on the working conditions and mental health of health workers show a complex and worrying scenario. And Nursing was not unharmed in this context, on the contrary, it was brutally hit with thousands of contaminated and hundreds who died from Covid-19 (Cofen, 2022), more precisely, 256 nurses and 617 nursing assistants/technicians, according to Machado et al (2022)”.
“Data from our recent research at Fiocruz (2021-2022) on working conditions and mental health of health workers show a picture in which: (i) ¼ of health workers have comorbidities, with five being the most prevalent: hypertension, obesity, lung diseases, depression and diabetes; (ii) more than 70% show strong signs of exhaustion and tiredness due to excess and work overload; (iii) most denounce poor working conditions translated into precarious and inadequate infrastructure, producing discomfort and ergonomic problems; (iv) insufficient biosecurity; (v) low and insufficient wages for their sustenance and a precarious domicile work pointed out by the ILO- International Labor Organization; (vi) multiplicity of jobs, almost always precarious and temporary and many, in the modality of odd jobs; (vii) physical and psychic sequelae inherited from the pandemic with enormous repercussions on the daily life of this contingent of more than millions of health workers, in which nursing is hegemonic and essential.” (“Nursing profession: essentiality x salary floor”, available at: https://informe.ensp.fiocruz.br/noticias/53382).
Concretely, the salary floor in question is a minimal and only symbolic way of repairing the improper treatment given to professionals responsible for carrying out essential services for the recovery and preservation of the health and life of the Brazilian population.
There is no social, cultural and human argument that can be raised against the wage floor in question, except that the value is still insufficient to fully rescue the dignity of these workers. Much less is there any legal argument that could deny the constitutionality and pertinence of the norm or impede its effectiveness.
However, in response to the request of the National Confederation of Health, Hospitals and Establishments and Services - CNSAÚDE, which brings together, above all, trade union entities representing private companies that economically explore work in the health area, Minister Luís Roberto Barroso, decided to “suspend ” the application of Law 14.434/22.
According to the arguments set out in the decision, the salary floor in question, if applied, could: (a) generate a “financial and budgetary impact on States and Municipalities and the risks to their solvency (CF, art. 169, § 1, I)” ; (b) cause “impact on employability in the sector, in view of the plausible allegations of mass layoffs brought to the file (CF, art. 170, VIII)”; and (c) bring about “impact on the provision of health services, due to the alleged risk of closing hospitals and reducing the number of nurses and technicians (CF, art. 196)”.
That is, to meet the demand of private companies, the Minister used arguments relevant to public entities, which is not also relevant due to the aspect that such assessments of the financial impacts on states and municipalities were carried out during the legislative process, which included, including, with the entity representing health professionals (the Federal and Regional Nursing Councils - COFEN/COREN - https://www.f5news.com.br/cotidiano/corense-se-posiciona-sobre-decisao-do-ministro-luis-roberto-barroso.html).
And as for private entities, the suspension decision only stated that if these companies wanted to comply with the law, they would be free to do so, but would not be obliged: “Of course, private institutions that are in a position to, from the outset, bear the costs of the floor contained in the contested law, not only are they not prevented from doing so, but they are encouraged to do so. The constitutional and tax circumstances pointed out here do not mean that the value is not fair and that the benefited categories do not deserve the minimum remuneration”.
The arguments, as can be seen, are not exactly legal, notably in the part that concerns private companies and, from an economic point of view (which does not bring any legally relevant repercussions in the case) are merely opinionated and still integrated with the typical threat of economic sector of the “closing” of units, even encouraging the practice already declared illegal by the STF of mass layoffs.
Faced with a Federal Constitution that was founded on the basis of human dignity and the social values of work and free initiative, in addition to having raised the principle of improving the social condition of male and female workers to a fundamental right, the argument that the preservation of jobs can only be guaranteed through low wages and precarious contracts, because, after all, in the last analysis, this is what is said when the preservation of jobs is the argument used to deny the validity of a law (democratically and regularly voted in the National Congress) which granted a modest salary adjustment to a category of workers who carry out an activity considered essential.
Interestingly, the STF was never asked to suspend the application of Law 13.467/17, which was the result of a flawed legislative process and which imposed numerous social, human and economic setbacks on the working class and which affected, above all, professionals in the health professionals who, today, work overtime, without a break and with precarious contracts, which even include outsourcing.
The fact is that the increasing suffering of the working class does not seem to move Brazilian institutions, while the outcry of economic power against greater sharing of its profits (https://einvestidor.estadao.com.br/investimentos/valor-acoes-empresas-saude-brasil) echoes quickly and effectively.
As said by a friend, the luck of the enslaved men and women is that in 1888 there was no ADI, because if it existed, the Golden Law might have been suspended due to its impacts on the country's economy.
But health professionals can rest assured that the worse their living conditions are, the closer they will be to being officially declared national heroes, because in Brazil, a good hero is a dead hero.
PS: This text was written before the end of the ADI 7222 judgment, with the hope that the final result of the vote disproves its content. And in the hope that the pertinent warning launched by Minister Edson Fachin in the reasons for his dissenting vote will be heeded: “Finally, I believe that the line of recent precedents in relation to labor matters suggests that the risk of delay is, at present, case, reverse. The jurisprudence of this Federal Supreme Court, in labor matters, has endorsed the reduction of institutional spaces in which workers traditionally could air their dissatisfaction: the right of public servants to strike was significantly reduced, union representation was severely affected by the reduction of union dues and the burden of resorting to the Labor Court has increased considerably”.
“In this scenario, it is not surprising that the only way left to the categories is the use of political representation and that, in the wake of the floor for nurses, other categories also plan similar claims. The present action is paradigmatic, because it could end up closing the only way left to Brazilian workers to assert their demands. If even when a constitutional majority has, in the eyes of this Supreme Court, legitimacy to ensure fundamental social rights, especially labor rights, it is a sign that a minority was privileged by it”.
“Renewing style bows, I understand that accepting the claim of unconstitutionality, as formulated, seems to attack the most basic sense of democratic legitimacy”.
*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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