Exceeding constitutional limits

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By JORGE LUIZ SOUTO MAIOR*

Luís Roberto Barroso is carrying out his true Crusade, aimed at meeting the eternal demand of the business sector to eliminate the social cost of labor exploitation

Carrying forward his true Crusade, aimed at meeting the eternal demand of the business sector to eliminate the social cost of labor exploitation, Minister Luís Roberto Barroso proposed, within the scope of the National Council of Justice (CNJ), the formalization of a Resolution (Normative Act) that establishes a judicial procedure aimed at the approval of extrajudicial agreements in the Labor Court, validating the “broad, general and irrevocable settlement” clause.

The effect of the initiative, however, ends up being to provide “security” for companies that commit illegal acts, since the statistics, so often cited lately, reveal that in only 10% of cases brought before the Labor Court, the claims made by workers are completely rejected. Generally speaking, those who find themselves in the position of defendant in the Labor Court do so because, according to the research figures, they have committed some illegal act.

These same companies have been demanding security for decades to continue committing labor illegalities, under the rhetorical arguments of economic hardship, the complexity of the legislation (even after an approved “reform”, under a state of exception, to meet all the demands of the sector) and the “paternalistic” stance of the Labor Court.

The complaints of this part of the business sector were expressly incorporated into the Resolution's foundations, as can be seen in the passages transcribed below, which leave no room for doubt:

“4. This proposal seeks to address one of the problems frequently highlighted in the labor area: excessive litigation makes the cost of the employment relationship uncertain before its end, which is detrimental to investments that can generate more formal jobs and higher quality employment relationships.”

“9. It is expected that labor litigation can be reduced by establishing a safe way for the parties to formalize the consensus reached, with the effect of a broad, general and irrevocable settlement, preventing the filing of complaints. In view of the above, I express my support for the approval of this proposed Resolution.”

From the “considerations” contained in the Resolution that approved the Normative Act, it is possible to see that there is no legal basis whatsoever to justify the initiative. It is merely a position taken in favor of an ideology that solely reflects the worldview of the business sector that contradicts the principles of Labor Law and the social values ​​established by the Federal Constitution.

In addition to being based on an ideological conception, the Normative Act, in order to achieve its objective, is full of affronts to the legal order.

But let's talk about this later, because the most important thing is to highlight how serious the simple existence of this regulatory initiative within an administrative entity is, even more so when it is found that the approval was by unanimous vote.

It is important, by the way, to state the names of the voters, especially since they include professionals from the Labor Court and experts in Labor Law. The Resolution states that: “The Council unanimously approved the Resolution, in accordance with the Rapporteur's vote. Justice Luís Roberto Barroso presided over the judgment. Virtual Plenary, September 30, 2024. The following members voted: Luís Roberto Barroso, Mauro Campbell Marques, Caputo Bastos, José Rotondano, Mônica Nobre, Alexandre Teixeira, Renata Gil, Daniela Madeira, Guilherme Feliciano, Pablo Coutinho Barreto, João Paulo Schoucair, Daiane Nogueira de Lira, and Luiz Fernando Bandeira de Mello. The Council members representing the Brazilian Bar Association did not vote due to vacancies in their positions.”

It is also important to note how revealing was the way in which the news media of large mass communication companies celebrated the publication of the Normative Act – and even released information that did not reflect the full content of the document, in order to try to reinforce the legal environment that weakened the position of workers vis-à-vis companies.

The fact is that as soon as the National Council of Justice, usurping the Legislative Power and completely deviating from its constitutionally established attributions, published a Normative Act in which it established rights and obligations for labor relations, the mainstream media, historical spokesperson for the business sector, effusively applauded the “initiative” of the National Council of Justice, regardless of whether the CNJ actually held the power to act in the way it did.

It is not new that the business sector in Brazil has been playing a game of anything goes, when the objective is to reduce the cost of the workforce.

In any case, it is understandable that the business sector thinks and acts in this way, even if it is deplorable and constitutes, in truth, an incentive to commit illegal acts, because, after all, it is in line with the logic of the mathematically calculated and limitless conduct of capitalism.

Now, that the institutions of the Republic place themselves at the service of the satisfaction and enjoyment of these exploitative interests is something that cannot be tolerated, even more so when, in order to achieve this objective, they violate the law and exceed constitutional limits.

The Normative Act represents a complete disregard for the legal order, committed by an institution whose role, constitutionally established, is to promote “administrative and financial performance of the Judiciary and the fulfillment of the functional duties of judges” (§ 4 of art. 103-B, of the Federal Constitution).

The list of powers that the constitutional norm conferred on the National Council of Justice does not include the power to regulate social relations.

Thus, without any possible sophistry, it is mandatory to conclude that Normative Act 0005870-16.2024.2.00.0000 is an attack against the democratic rule of law and, worse, a legal affront promoted by those who would have the responsibility of preventing the Judiciary from presenting itself as an instrument of suppression of the constitutional order.

For this reason alone, all people and institutions committed to democracy and respect for the Constitution should position themselves against the existence, in itself, of such a Normative Act and not, in a timely manner, congratulate the National Council of Justice for the initiative or even, once again, assuming the logic of the lesser evil, welcome the measure with the argument that it was a “victory of the possible”.

In the express terms of the Resolution, there is also an attempt to legitimize the regulation, which would be integrated into the set of objectives and activities of a group formed by Minister Barroso to study “consensual methods of resolving disputes in the Labor Court”.

The Resolution states that “the draft was drawn up after extensive dialogue, including a meeting held at the National Council of Justice on April 29.04.2024, XNUMX, with representatives of the Superior Labor Court, the Public Ministry of Labor, the Ministry of Labor and Employment, the Brazilian Bar Association, academia, trade unions and employers' confederations”.

However, it is not clear whether the “draft” referred to was from the aforementioned “study group” or from the Normative Act itself. In any case, any approval from the aforementioned “representatives” would not have the power to confer powers on the CNJ. In fact, such approval would only make the situation more serious and alarming.

So let it be recorded here my full repudiation of the initiative of the National Council of Justice and all the expressions of support for the initiative or naturalization of what happened, especially because if the trend catches on the CNJ will not see any limit to, for example, dictating norms that restrict the effectiveness of Fundamental Rights, as if it were not enough, within the scope of the Federal Supreme Court, the convictions (with effective compliance) without judicial process.

As regards the content itself, the Normative Act does not deviate from the authoritarian and anti-legal spirit of its existence and promotes a series of new unconstitutionalities.

Firstly, the regulatory initiative reveals the contradiction, which seeks to privilege the will of the parties, but links the legal validity of this will to a judicial seal. And, even more, in an arbitrary manner, it authorizes this “mitigated will” only for situations in which the value of the agreement does not exceed the limit of 40 minimum wages. The Resolution does not corroborate its own premises.

Secondly, still in a contradictory manner, it seeks to turn the judicial act of approval into a mere bureaucratic act, even interfering with the independence of the judiciary by establishing that “Only partial approval of agreements entered into is prohibited” (§ 3 of art. 3).

In other words, it is recognized that the parties, being unequal, do not have full freedom to resolve their conflicts individually, and it is up to the Judiciary to validate any legal transaction formulated between them. However, this approval would be done without any value judgment being made. Thus, the act of going through the Judiciary would be just one more bureaucracy.

It turns out that approval is a judicial decision that, in translation, represents the Judiciary's recognition that the legal transaction carried out is in compliance with the law.

To say this, when dealing with labor rights, which involve the compliance of the norm with the facts, given the principle of the primacy of reality on which Labor Law is based, the judge needs to know the facts surrounding the conflict. An agreement that only states how much is paid for such and such “installment” (which is not even referred to as a right) simply cannot be judicially approved.

If it is validated judicially, it can be anything but a homologation. And whatever is done in this act of “homologation” has no legal value.

Remember, as appropriate, that the TST summary understanding, as could not be otherwise, guarantees the judge the freedom not to approve an agreement: “The granting of an injunction or the approval of an agreement constitutes the judge's discretion, there being no clear and certain right that can be protected by means of a writ of mandamus” (TST Summary 418).

The fact is that the judge may decide not to approve the agreement if its terms violate non-transferable rights or public order precepts, or even when the elements contained in the agreement are not sufficient for this analysis to be carried out.

The precept that unavailable and public order rights cannot be disregarded by the agreement is even expressed in art. 855-C of the CLT, brought by Law No. 13.467/17: “The provisions of this Chapter do not affect the term established in § 6 of art. 477 of this Consolidation and do not prevent the application of the fine provided for in § 8o art. 477 of this Consolidation”.

The same precept can be seen in section II of § 4 of art. 844, which expressly states that a procedural institute (default) cannot generate an effect on “unavailable rights”.

In any case, given the Resolution of the National Council of Justice, what can be foreseen is that failure to approve the decision by the judge will generate dissatisfaction in the company, which has been frustrated in its expectation of “getting rid” of that worker. Armed with the Resolution, the company will feel empowered to file a disciplinary complaint with the CNJ, in view of the conduct adopted by the judge. And, thus, with each administrative punishment of a judge who, while fulfilling his or her functional duty and exercising his or her jurisdictional power, refuses to corroborate this entire aberration, the Labor Judiciary will find itself definitively removed from the sphere of the Powers of the Republic.

The Resolution also seriously violates the legal system by attempting to impose on the Judiciary the generalization of the formula (acclaimed by the business sector) that “extrajudicial agreements approved by the Labor Court have the effect of broad, general and irrevocable settlement”.

However, there is no legal basis expressed in the Resolution to adopt this formula. The only assumptions announced are to provide security for the company that committed one (or several) labor illegalities and to prevent access to justice, which in itself represents a direct affront to item XXXV of art. 5 of the Federal Constitution (“the law shall not exclude from the assessment of the Judiciary any injury or threat to a right). And we are not talking about a law, but rather an act whose best name is “whatever that may be”.

And this “settlement”, furthermore, applauded and covered by the Resolution of the National Council of Justice, cannot even be conceived as an institute intended to prohibit the effectiveness of legal norms.

Furthermore, the State's duty is to guarantee the effectiveness of the law. Therefore, the creation and validation of mechanisms that put compliance with the legal norm in the background is contrary to this objective. Remember that, in labor terms, the State is also responsible for supervising employers with a view to the effective application of labor laws.

It is also important not to forget that the settlement is, in fact, the legal effect of the payment, as stated in the definition of art. 477 of the CLT. The settlement, therefore, covers only the amounts paid and duly specified in the agreement, even when it is a judicially approved agreement.

As provided in article 320 of the Civil Code: “The discharge, which may always be given by private instrument, shall designate the value and type of the debt discharged, the name of the debtor, or whoever paid on his behalf, the time and place of payment, with the signature of the creditor, or his representative”.

In fact, the Code of Civil Procedure also has an express provision stating that the approval of an agreement constitutes a final decision on the merits (art. 487) and that it must be restricted to the limits of the dispute, according to art. 503: “The decision that judges the merits in whole or in part has the force of law within the limits of the main issue expressly decided”.

The fact is that an agreement, which deals with labor funds, even more so if made extrajudicially without the factual explanation of the underlying conflict, cannot imply a prior and generic waiver of rights, even more so when it concerns credit of a food nature, under penalty of violation of art. 100 of the Constitution, art. 1.707 of the Civil Code and art. 9 of the CLT.

A stipulation beyond these limits is blatantly unconstitutional, especially when its purpose is to prevent access to justice, guaranteed by article 5, XXXV, and article 7, XXIX, both of the Constitution.

The “broad, general and irrevocable discharge” clause is illegal and the judicial action does not have the power to make legal what is literally illegal, under the false argument of legal certainty.

It is not possible to think about legal certainty in a reality in which the State, which holds the monopoly of jurisdiction, seeks, itself, through the law, to deny access to justice for people who find themselves subjected to a legal relationship marked by inequality, a logic that, moreover, is repeated in the current art. 507-B of the CLT.

It is clear from the analysis of item “f” (introduced by Law No. 13.467/17) of art. 652 of the CLT, that approval is a decision, which therefore requires justification and respect for the legal order.

Even out-of-court agreements, in the labor sphere, in order to have legal validity, depend on approval by the judge of the Labor Court and this approval is not automatic, as he or she, as the law states, must “decide” on the matter.

It is not, therefore, a bureaucratic act, of mere compliance or submission to the will of the parties, since deciding is stating the law and homologating, specifically, means saying that the will expressed by the parties is in accordance with the legal order.

Remember, also, the parameter established by the sole paragraph of article 507-B of the CLT: “The term will discriminate the obligations to give and do fulfilled monthly and will include the annual settlement given by the employee, with the release effect of the installments specified therein.”

The same parameter is also extracted from art. 452-A, § 7, of the CLT: “The payment receipt must contain a breakdown of the amounts paid for each of the installments referred to in § 6.o of this article.”

The CPC itself, which heavily promotes conciliation, does not serve the panacea that “every agreement is legal”. The legal act that is treated with greater technical rigor in the new CPC is the transaction, which requires, for its validity, mutual concessions (art. 840, of the CC) and respect for public order issues, since “only with regard to private property rights is the transaction permitted” (art. 841, of the CC).

Under the terms of the CPC, a case is not resolved through conciliation, but through a transaction. Therefore, even if the provisions of the CPC were applied, there would be no legal basis for approving conciliations that represent waivers of rights, violate unavailable rights and disregard matters of public order.

Article 487 of the CPC, it is true, accepts the possibility of resolving the case through waiver, but at least the CPC has the modesty to separate transaction from waiver, and the latter, waiver, given the characteristic principle of Labor Law, does not apply, obviously, in Labor Courts. Even so, the waiver would have to be express and delimited to have any validity and would be, as stated in letter "c" of section III, of art. 487, restricted to "the claim formulated in the action".

When dealing with res judicata, article 503 of the CPC reinforces the understanding of the invalidity of the “full settlement” clause. As this provision makes clear, the merits, which make up the res judicata, will be seen “within the limits of the main issue expressly decided” (caput), and even prejudicial questions only form part of the res judicata when included in prior and effective adversarial proceedings (§ 1, item II).

Therefore, it is not possible to speak of the approval of an “agreement” as a mere formula for reducing processes, and it is necessary to assess whether the terms of the negotiation represent a transaction or waiver, with the obvious consequence that the limits of the approval are the objects expressly transacted – when, in fact, there is a transaction.

It is therefore necessary to make it clear that the Resolution in question, approved “unanimously”, represents a direct affront to the Federal Constitution and to reveal that this initiative is, in fact, related to a concern to meet the complaints of employer sectors historically linked to the repeated and assumed practice of non-compliance with labor legislation, these being, in fact, the real promoters of such “conflict”, which, in truth, does not deserve this name, since it is effectively an effect of the regular exercise of the constitutional right of action (which is also integrated into the list of Human Rights).

The pursuit of satisfaction of a right through legal means is a right and even a concrete expression of citizenship. If in the reality of the world of work in Brazil many workers find themselves forced to file labor complaints, this is a symptom of the fact that we live (even passively) with a repeated and widespread disrespect for labor laws.

The State's measures in this context should be to monitor and punish offenders and not to create mechanisms that prevent people whose rights have been violated from defending them in court.

In fact, if we think about it, considering the reality of labor relations in Brazil, with a very high number of workers subjected to “informality”, precarious contracts and employment contracts that do not last more than a year, which is, in concrete terms, a situation of contained litigation, especially after the labor “reform”.

The number of complaints is therefore infinitely smaller than the situations in which labor rights are disrespected. And this is, in fact, our biggest problem, including in terms of wealth distribution and budgetary potential to fulfill the promises of the welfare state.

Furthermore, it is on workers that legal uncertainty specifically falls, since they depend economically on the preservation of the employment relationship to survive and, under these conditions, without a legal norm that guarantees them employment, they end up accepting to work in the conditions that are offered to them, without respect for their rights.

In this context, the only weapon left to workers is the possibility of going to the Labor Court to recover their rights, and they can only do this after the employment relationship has ended and, therefore, after having been subjected to adverse working conditions for a long time. Even full payment of rights, with interest and monetary correction mitigated (by action of the STF itself), after years of processing the case, is incapable of compensating for the damages and suffering experienced.

It is, therefore, a huge deviation from perspective, in addition to extreme violence, to transform the worker who seeks to assert his or her rights into an undesirable character who creates problems for the Judiciary and, based on this assumption, to create a mechanism to legitimize the waiver of rights by people pressured by necessity, especially when they seek to receive severance pay of a food nature, strategically not paid by the employer.

And, at the same time, place in the position of victim those (employers) who promote this perverse reality and take advantage of it.

What is expected is that the revelations contained in the Resolution can, at the very least, stimulate reflection, self-criticism and changes in attitude, so that, finally, the commitment to the effectiveness of social rights can be put into effect in Brazil.

*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) [https://amzn.to/3LLdUnz]


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