Put Rafael Mello and Israel Cruz – 14/04/2020

As already reported in previous news[1] A preliminary injunction was granted by Minister Ricardo Lewandowski of the Federal Supreme Court (STF) in the direct unconstitutionality action 6,363 filed by the Rede Sustentabilidade party to determine the interpretation of MP 936/2020 in accordance with the Federal Constitution, in the following terms:

However, the mere provision in MP 936/2020 that such agreements “must be communicated by employers to the respective union representing the category, within a period of up to ten calendar days” apparently does not overcome the unconstitutionality pointed out in the initial complaint. This is because the simple communication to the union, devoid of legal consequences, continues to violate the provisions of the Constitution on the matter.

Therefore, it is necessary to give a minimum of effectiveness to the communication to be made to the labor union in the negotiation. And the best way to do so, in my opinion, is to interpret the text of the Provisional Measure, contested here, in the sense that the “individual agreements” will only be validated, that is, will only have full legal effects, after the manifestation of the employees' unions.

In the absence of any such manifestation, in the form and within the timeframes established in the labor legislation itself for collective bargaining, such as art. 617 of the Consolidation of Labor Laws, interested parties will be entitled to continue directly with the negotiation until its conclusion.

(…)

That said, based on the reasons set out above, I partially grant the precautionary measure, ad referendum of the Plenary of the Supreme Federal Court, to give an interpretation in accordance with the Constitution to § 4 of art. 11 of Provisional Measure 936/2020, in order to establish that “[t]he individual agreements to reduce working hours and wages or temporarily suspend an employment contract […] must be communicated by the employers to the respective labor union, within a period of up to ten calendar days, counted from the date of their execution”, so that the latter, if it wishes, may initiate collective bargaining, its inaction implying consent to what was agreed by the parties.

Due to this decision, the Attorney General of the Union filed an appeal requesting that the decision be reconsidered and pointing out alleged omissions, contradictions and obscurities that needed to be corrected.

In the judgment on these Statements of Clarification, on the present date, Minister Ricardo Lewandowski understood as follows:

In view of all of the above, I clarify, in order to dispel any doubts, and without this implying any modification of the contested decision, that the individual agreements entered into in accordance with MP 936/2020 are valid and legitimate, and produce immediate effects, being valid not only within the 10-day period provided for communication to the union, but also within the deadlines established in Title VI of the Consolidation of Labor Laws, now reduced by half by art. 17, III, of that presidential act.

I reserve, however, the possibility of the employee adhering to the collective convention or agreement signed subsequently, which shall prevail over individual agreements, insofar as they conflict with them, observing the principle of the most favorable norm. In the event of the union's inaction, the individual agreements as originally agreed upon by the parties shall fully subsist.

Thus, the decision ratified the previously granted injunction, establishing only that the agreements signed produce immediate effects and not only after the agreement has been validated by the employee's union.

It was also established that employees may later adhere to a collective agreement or convention that is more beneficial to them than an individual agreement.

Therefore, the suggestion for legal assessment before using mechanisms to reduce wages or suspend the employment contract is renewed.

Mazzucco & Mello Advogados is ready to support its clients in adopting balanced measures and mitigating risks arising from the current scenario, which is still one of uncertainty and legal insecurity.

[1] https://www.mazzuccoemello.com/desdobramentos-da-medida-provisoria-936-de-2020-decisao-liminar-do-supremo-tribunal-federal-e-a-necessidade-de-ausencia-de-oposicao-dos-sindicatos-ao-acordo-individual-com-o-trabalhador/