The Federal Supreme Court has judged on the maintenance of a monocratic injunction decision in the Direct Unconstitutionality Action n° 6,363 which, in short, bound individual agreements for suspension and reduction of employee work shifts, provided by MP 936 (art. 11 § 4) to union approval and authorization. In other words the union gives the final word on the agreement.
The Supreme Court decided by majority that there is unconstitutionality in the section discussed. A final decision on the DUA is still to be scheduled.
What is the relevance of this decision? For obvious reasons, it brought relative legal safety to all involved in the labor relationship, employer and employee.
In the words of the Superior Labor Court Minister, Almir Pazzianoto: “in times of war, any hole’s a trench, as the old saying goes”.
And he is right. We are in a state of absolute exception, of force majeure. Clinging to bureaucracy and current legislations, while companies wither and die, particularly micro and small businesses, does not seem reasonable at all. This is precisely what our Supreme Court indicated through the votes of its Ministers for canceling the injunction. In addition, these same votes tell us that the literalness of the legislation must be analyzed in the light of our current scenario, which is unprecedented. In other words, no law was made for the moment we live in.
Thus, we must keep in mind that actions today have an emergency character to them, in order to safeguard companies and businesses, as millions of jobs are tied to them. There is no escaping this reality. This is why some caution should be exercised in interpreting the articles of the current legislation, which is why we stand by common sense. When this period is behind us, countless debates will be held about past events, but right now, our minds must be focused on the future.
Fernando Andrade, Labor law attorney and office partner.