by Luiz Fernando Plens de Quevedo
Published in an extraordinary edition of the Official Gazette on April 1, 2020, MP 936, in addition to establishing the Emergency Employment and Income Maintenance Program, supplemented MP 927/2020. We have already criticized the constitutionality of the Provisional Measure, especially for removing the requirement of collective bargaining to reduce salaries, as well as for reducing the Employment and Income Preservation Benefit when subject to collective bargaining, causing real harm to employees assisted by their union in collective bargaining when the employer joins the Emergency Program, compared to the benefit provided by law for employees joining the same Program through individual negotiation.
The aspects relating to individual negotiation have already been discussed in a previous article. Now, objectively, the aspects relating to collective bargaining for implementing the Emergency Program will be discussed; collective bargaining may be used in all cases, but becomes mandatory for suspending the employment contract, or reducing salaries by more than 25%, for employees earning more than BRL 3,135.00, as well as for employees earning more than BRL 12,202.12 who do not hold a university degree.
Unjustified, however, are the provisions of MP 936, first, authorizing the implementation of the Emergency Employment and Income Maintenance Program through collective bargaining; and second, providing that the amount of the Employment and Income Preservation Benefit, when provided for in a collective agreement, will be proportionally lower than the benefit paid to employees who entered into an individual agreement for salary reduction.
§1 of art. 11 of MP 936 provides that, in the case of collective bargaining, there is no reason to restrict the salary reduction to the exact proportions imposed on individual agreements – 25%, 50% and 70%. However, it excludes the employee’s right to receive any amount of unemployment insurance when the salary reduction is less than 25%. For salary reductions between 25% and 50%, the benefit will be calculated by applying 25% to the calculation base. For reductions between 50% and 70%, 50% is applied to the calculation base. For reductions above 70%, which are only allowed through collective bargaining, the rate used to calculate the benefit is limited to 70% of the calculation base.
If a collective bargaining agreement or collective agreement is entered into, no amount will be paid to the employee if the reduction in working hours and salary is less than 25%. The union and the employer may negotiate other payments, with an express provision allowing the negotiation of a non-salary compensatory allowance. Even so, there is no justification for discriminating between an employee who individually negotiates a 25% salary reduction and begins receiving proportional unemployment insurance, and an employee who, supported by their union, has their salary reduced by 20%, for example, and will receive no unemployment insurance. Equivalence only occurs in the case of suspension of the employment contract, when employees assisted by the union and those who made individual agreements will receive the same amount corresponding to unemployment insurance.
The deadlines specific to collective bargaining, with the other CLT provisions unchanged, have all been cut in half. Thus, the deadline for the Union to take up negotiations raised by employees or a given company is reduced to 4 days. Once the deadline has passed, employees may take the negotiation to the corresponding Federation and, successively, to the Confederation (art. 617, CLT). The formal requirements for collective bargaining, such as, but not limited to, the calling, deliberation, decision, formalization and publication of a collective bargaining agreement or collective agreement, may be carried out by digital means on an exceptional basis, given the aim of avoiding gatherings. Finally, the collective instrument must be filed with the Ministry of Economy.
Finally, art. 17 of MP 936/2020 contains a provision related to art. 18 of MP 927/2020. However, not to broaden the cases of suspension of the employment contract for professional training, but rather to limit the minimum and maximum duration to 1 and 3 months, respectively. Art. 476-A allowed the contract to be suspended for periods of 2 to 5 months.
In any event, employees who receive the Employment and Income Preservation Benefit will enjoy job security for a period equal to that in which they received the benefit. That is, if the employment contract is suspended for the maximum period of 60 days, the employee will benefit from job security for an equal period of 60 days after returning to work. In the event of termination during the job security period, in addition to the regular severance amounts, the employer must pay compensation equivalent to 50% of the salary the employee would have been entitled to during the job security period, where the salary reduction was less than 50%. Compensation will be equivalent to 70% where the reduction was less than 70%, and 100% where the reduction exceeded 70% or where the breached agreement provided for suspension of the employment contract.
If fraud is found in agreements suspending employment contracts, whether entered into through collective or individual negotiation, specifically if it is found that an employee with a suspended employment contract has been working, the company will be required to pay immediately the remuneration and social security charges for the entire suspension period, and will be subject to an administrative fine ranging from one thousand to one hundred thousand reais, in addition to any fine under the collective agreement. In the case of breach of the agreement to reduce salary and working hours, despite the administrative fine, there is no provision for payment of amounts to the employee for breach of the salary reduction agreement.
