Author: Almir Pazzianotto Pinto *

Source: Migalhas, 06/02/2009

It is frustrating to note that, despite the crisis that shakes the foundations of the world economy, causes bankruptcies and multiplies unemployment, some accuse the proposal of modernizing Brazilian labor legislation with mere opportunism.

 

Popular books, such as “Management in Times of Crisis”, by Peter Drucker, “The End of Jobs”, by Jeremy Rifkin, “The Economic Horror”, by Viviane Forester, “Europe”, by Zygmunt Bauman, “The Post Industrial Society ”, By Domenico De Mais, and repeated reports by the International Labor Organization, have denounced the relentless reduction of the labor market.

 

Internally, some old publications already denounced the anachronism of the national legal and labor structure, as did the magazine “Exame”, in May 1999, in the article entitled “Labor Legislation: Enough!”, Or “Veja” , of January 2004, which pointed out, in comparison with 132 countries, the main factors of our delay:

 

a) the sixth worst bureaucracy for starting businesses;

b) the second worst bureaucracy for closing companies;

c) the third worst labor legislation;

d) the 30th slowest Justice in the world. You could have mentioned:

e) the most prolific of republican constitutions;

f) legal uncertainty.

 

A few days ago, while browsing through a bookstore specialized in legislation and jurisprudence, I realized that a single CLT (click here) commented weighs about 2,5 kg. I tried to ascertain the number of works specialized in labor law and procedural labor law, and halfway I gave up. I reflected on the number of overviews, jurisprudence guidelines, transient jurisprudential guidelines and normative precedents and I realized that we live in a surrealist framework, trying - as Giulio Carlo Argan would say - to “elude the reality of problems, by ambiguity and paradox”.

 

When consulting statistics, we observe that the volume of deeds is in the millions, which imposes a permanent expansion of the judicial apparatus, whose members, no matter how hard they try, do not defeat the delay. These days I learned that lawsuits against the extinct TV Manchete have been ongoing for over ten years. Actions of retirees of the Federal Railway Network await dispatches at the Supreme Federal Court, placed by the Constitution (click here) as a last resort in labor claims. If we open the issue of slowness to the debate, and start to collect complaints from everyone who feels harmed, it will be a never ending regret.

 

Brazil erred when, after the fall of the Estado Novo and the promulgation of the 1946 Constitution, it ignored the need for union reform, forgot about the CLT, and insisted on regulating labor relations with uniform federal laws, inadequate for this marked country by contradictions and diversities. It ignored the lessons of developed peoples where interest adjustments, between employees and employers, are obtained and periodically renewed through collective agreements. They do not abdicate the law, but try to make it objective, simple, stable, aimed at the discipline of basic rights, as autonomy of union organization before the State. Repetitive causes are avoided, as they harm the economy and attack rationality.

 

The judicial conflict should consist of exceptional therapy in the world of work. Among us, however, it has become a routine measure. Due to the overwhelming number of events, the interpretations of the texts are uneasy, as was seen in a recent Supreme Court ruling on additional unhealthiness. After 60 years of certainty, the Supreme Court determined, unexpectedly, that the aforementioned amendment should not be calculated on the minimum wage, but on the one actually paid. The dire consequences of this judgment, employers such as hospitals and nursing homes immediately saw.

 

TST statistics show that, from 1941 to 2008, 60.903.351 cases were filed, judged 58.127.508, with a negative balance of 1.467.412. Each year there are hundreds of thousands of new complaints, showing a worrying drop in the percentage of reconciliations at the first hearing.

 

The torrent of actions, from the poorest to the most developed states, continues to grow, especially after the appearance of matters such as moral damage, material damage, moral coercion, sexual harassment. Something must be urgently provided. It does not occur to me to obstruct access to justice for all those who feel injured or threatened in some right. However, I defend the preference for extrajudicial solutions, with the encouragement of direct, individual and collective negotiations and, in the event of an impasse, the use of mediation, conciliation or arbitration.

 

Brazil loses ground in the international economy. The problems he experiences in the face of organized countries are visible, where the weight of state bureaucracy and taxes is less, and labor relations are not subject to detailed, useless, stifling and outdated legal norms, fomenting conflicts.

 

We complain about China, accused of abuse of slave labor. The fact, however, is that Chinese goods overwhelm the domestic market, as we are unable to compete on elementary items, such as umbrellas, cutlery, hand tools, crockery, cameras.

 

As a starting point for the modernization of labor legislation, I propose the extinction of the mandatory Union Contribution, the reduction of the weekly workweek to 40 hours, accompanied by the suppression of all special hours, the replacement of unhealthy and dangerous work by the health insurance institution. to all workers, some flexibility in the rest and feeding intervals, the appreciation of the discharge receipt, which should enjoy equivalent liberatory efficacy to that provided in art. 625-E confers the extrajudicial conciliation term.

 

The journey towards modernizing labor legislation will not be simple, but long and rugged, as it will face ideological and physiological barriers. That is why we must start it immediately, as an instrument to fight the crisis and unemployment.

 

 

* Former Minister of Labor and former President of the Superior Labor Court