Source: O Estado de S. Paulo, 31/03/2009

In times of high tide, few remember to modernize labor laws. In the crisis, the picture is inverted, when it appears that laws coined with the best of purposes are more instigating than avoiding layoffs of workers.

Look at the case of reduced working hours with reduced wages. For this to be the object of collective bargaining, the company's economic difficulties have to be “properly proven” (Law 4.923 / 65).

Let's face it, there can be no more vague expression than that. What is proper proof? Does the company need to get close to bankruptcy? What are the indicators that satisfy this requirement?

Furthermore, what is accepted as duly proven by the parties to collective bargaining today may not be accepted by employees, the labor union or the Labor Prosecutor's Office tomorrow. This may give rise to the annulment of the collective agreement within one or two years, which will require the company to pay all unpaid wage installments, plus 102% social charges, plus interest and monetary restatement. This labor liability tends to assume gigantic proportions, supplanting, in many cases, the company's own assets. Legal uncertainty is colossal.

In order to correct this problem, there is no need to carry out any revolutionary reform or even to change the Federal Constitution. It is enough to change article 2 of the referred law, clearly defining objective indicators to capture the company's economic difficulties, such as, for example, a drop in sales or sales, below a certain level and for three or four consecutive months.

It is a simple improvement and can be done even by Provisional Measure. With greater legal certainty, companies would use this measure more easily, avoiding hasty dismissals. Without this, many soon leave for the layoff, paying severance pay and avoiding hidden labor liabilities. As it stands, this law encourages layoffs rather than avoiding them.

The same occurs with the suspension of the employment contract that many companies would like to use in order to retain their employees. During the period of contract and salary suspension, the employee receives a Qualification Scholarship from the Ministry of Labor and Employment. A good measure for emergency situations. And why do few companies use it?

Because, in order to use this expedient, the Ministry of Labor and Employment requires companies to carry out a course based on a pedagogical and methodological plan to be approved by the Labor Precinct, which includes the use of laboratories, seminars and workshops, with a charge hourly from 120 to 300 hours. Such bureaucracy!

There is more. The worker to be benefited must appear at the Labor Office with a copy of the collective agreement, work card, CPF, identity card and proof of registration with the PIS. More bureaucracy!

Article 476-A of the CLT that governs the matter is already complicated in itself. With such requirements, it is virtually impossible to use. The risk of having the course rejected or of making a mistake is great, which may later lead to the annulment of the measure, again generating a large labor liability.

For this reason, instead of taking risks, many companies prefer to dismiss, pay severance payments and enjoy the necessary legal certainty. It is yet another example of regulation that, when trying to protect, ends up unprotecting. Again, modifying it is simple.

The examples are endless. Brazil missed the opportunity to modernize labor laws at the time of growth, when jobs were fed up. Many changes could have been approved to take effect in the future, which would have created less insecurity.

But not everything is lost. The crisis also provides conditions for change. In fact, the crisis requires changes. Nowadays we live an opportunity to make adjustments with low political resistance and high practical effect.

However, we cannot deceive ourselves. Unemployment is only corrected with employment. But the legislation can help to mitigate and reduce the layoffs that are practiced today as a result of the insecurity created by poor quality laws.

* José Pastore is professor of labor relations at the University of São Paulo. Site: www.josepastore.com.br