by Luiz Fernando Plens de Quevedo

On April 1, 2020, MP 936 was published which, in addition to establishing the Emergency Employment and Income Maintenance Program, relaxed the rules for reducing working hours with a corresponding reduction in salary, and relaxed the procedure for suspending the employment contract by removing the mandatory submission of the matter to collective bargaining. In other words, the Provisional Measure made it possible, as a result of negotiations conducted directly between employee and employer, to reduce working hours and salary for up to ninety days or suspend the employment contract for up to sixty days, without the participation of the union being necessary for the legal act to be valid.

The anxiety over the publication of a measure replacing the repealed art. 18 of MP 927/2020 — which had floated the possibility of suspending employment contracts for up to four months without, however, providing any consideration to the worker — has passed. Now, after the publication of MP 936/2020, the anxiety has shifted to the necessary review of the matter by the Federal Supreme Court, since, without a doubt, MP 936/2020 runs counter to item XIII of art. 7 of the Constitution — “irreducibility of salary, except as provided in a collective bargaining agreement or collective agreement” — and that is exactly what was seen in the first lines of the decision issued by Justice Ricardo Lewandowski on Monday, 04.06.2020: “in a still cursory examination of the complaint, appropriate to this procedural stage, it seems to me that the political party that signed it is partly right”, addressing the Rede Sustentabilidade Party, which filed Direct Action of Unconstitutionality No. 6363-DF, with a request for an Injunction, on 04.02.2020.

The legal basis of the ADI is the unconstitutionality of MP 936/2020 for directly violating items VI, XIII and XXVI of art. 7, and items XXX and VI of art. 8 of the Federal Constitution. It thus seeks a declaration that MP 936/2020 is unconstitutional, specifically: “in order to rule out the use of individual agreements to provide for salary reduction and employment contract suspension measures”.

In the decision issued just five days after the publication of MP 936/2020, Justice Ricardo Lewandowski cited the public position of the National Association of Labor Court Judges – ANAMATRA and the National Association of Labor Prosecutors – ANPT. He highlighted the guidance of the International Labour Organization – ILO, recognizing employers’ vulnerability in the face of the pandemic, whose side effect is the increasing precariousness of labor relations. Even so, the ILO reaffirmed its historic position, promoted since 1919, based on the defense of tripartite social dialogue involving government, workers’ representatives and employers’ representatives as a viable way of dealing with the shocks caused by the crisis in the world of work.

The Justice also looked for examples in international experience for the specific case of the current pandemic. All this to return to the initial conclusion that the provision in MP 936/2020 is clearly unconstitutional in allowing the reduction of working hours and salary, as well as the suspension of the employment contract, to be lawful without union assistance, given the evident “asymmetry of bargaining power.”

However, given the unique times we are living in, the new direction of the STF’s decision was proportionate to the caution with which the Judiciary must act in the face of the “serious proportions assumed by the Covid-19 pandemic”. In the end, the direction of the decision is found in the following passage: “However, judges, regardless of the level to which they belong, may not, whether out of inertia, convenience or timidity, abdicate their lofty duty as guardians of fundamental rights, especially in times of crisis or emergency.”

Given the unique perspective of the rule and the facts, the unconstitutionality of MP 936/2020 was recognized on an interim basis. However, “seeking to preserve the challenged normative text as much as possible”, which was “certainly issued with the best of intentions”, the injunction sought by the plaintiffs was granted, but not with the intended effect.

In short, the modulation of the still provisional decision issued by the reporting justice of the ADI at the STF, Justice Ricardo Lewandowski, found in MP 936/2020 itself the way out of the imbroglio.

§ 4 of art. 11 of MP 936/2020 requires that, where an individual agreement is entered into to reduce salary or suspend the contract, “employers must notify the respective labor union within ten calendar days from the date it is entered into”. The STF’s decision granted the Injunction to add to the legal requirement of notifying the union a condition for achieving full legal validity, under which “individual agreements will only be validated, that is, will only have full legal effect, after the employees’ unions have expressed their position”

Thus, after entering into an individual agreement for salary reduction and/or suspension of the employment contract, the employer must notify the union. The union will have four days to express its agreement with the arrangement or to state its collective intention to negotiate a collective agreement on the subject. If the union does not respond, its agreement is presumed, thus validating the full legal effect of the individual agreement entered into between employee and employer.

There is, however, no consequence provided for the Federal Government, which, within the same ten-day period, must be notified of the individual agreement, at which point it will include the employee as a beneficiary of the Emergency Employment and Income Maintenance Benefit Program, and the employee will begin receiving the benefit within 30 days.