Bill No. 7.169/2014, which provides for mediation between private parties as an alternative means of dispute resolution and the resolution of conflicts within the Public Administration, is about to be included on the agenda of the Constitution, Justice, and Citizenship Committee (CCJC) of the Chamber of Deputies.
Article 41 of this bill, as approved in the Federal Senate, provided for the application of mediation rules to numerous types of relationships, including labor relations. Representative Sérgio Zveiter (PSD/RJ), however, the rapporteur for Bill No. 7.169/2014, presented an opinion to the Constitution, Justice, and Citizenship Committee (CCJC) of the Chamber of Deputies, incorporating Amendment No. 5, authored by Representative Alessandro Molon (PT-RJ), to exclude labor relations from the scope of mediation. Thus, it was explicitly stated in Article 41. 3, § 3, IV, of Bill No. 7,169/2014 that the mediation rules do not apply to employment relationships, while it was also recorded that the mediation clause does not apply to adhesion contracts (§ 3 of art. 2).
As highlighted in the rapporteur's opinion, the amendments incorporated the technical note presented by Anamatra, which defended the following viewpoint:
The legislative claim to apply mediation in labor relations is a measure that violates the very essence of labor law, as well as the minimum standard of dignity afforded to workers. This impracticability stems from the fact that labor law standards are standards of public order, considered as such because they establish principles whose maintenance is considered indispensable to the organization of social life, according to the precepts of law. Internal public order denotes the impossibility of their being overridden by private will.
There are other aspects worth highlighting. Mediation, as the bill indicates, aims to encourage or develop consensual solutions to disputes through an impartial third party, chosen or accepted by the parties. Employment relationships have a central characteristic: economic discrepancies between the contracting parties, which often leads to allegations of fraud in the stipulation of contract clauses or in their execution. Therefore, establishing mediation without considering the actual conditions under which these extrajudicial consensuses are reached can not only generalize precarious behavior in the hiring or dismissal of workers, but also increase the number of lawsuits in court arguing the existence of fraud in this type of agreement.
The Consolidation of Labor Laws (CLT) already provides for extrajudicial conciliation mechanisms, as its articles 625-A to 625-H, introduced by Law No. 9,958 of January 12, 2000, grant prior conciliation commissions the "power to attempt to conciliate individual labor disputes." The near-absolute irrelevance of these extrajudicial mechanisms currently stems precisely from a sad diagnosis: a large portion of the settlements were reached without sufficient impartiality on the part of the mediators; workers remained increasingly suspicious of the true objectives of these commissions, even though they supposedly had the support of their unions; the commissions demonstrated great concern with raising the funds necessary for their operation, which distorted their purpose. All of this led not only to a growing discrediting of the prior conciliation commissions but also to numerous judicial challenges to the settlements reached there.
There is no doubt that conciliation can be an advantageous and fair means of resolving conflicts in labor relations. However, to prevent this method from becoming a farce aimed at suppressing fundamental rights, it is first and foremost necessary to strengthen unions and other means of collective worker unity. Labor rights are never entirely individual, and the conflicts involving them always have a characteristic effect on the entire workplace. Therefore, the extrajudicial settlement of labor disputes would only make sense if it relied on the participation or assistance of the workers' real and free collective will, which would require restructuring our entire union system.
If the prior conciliation commissions themselves, over these 14 years of experience, have failed to achieve resolution of individual labor disputes, despite supposedly having members appointed by the workers (CLT, art. 625-B, I), pure and simple mediation by any third party tends to further exacerbate the failures and problems observed in the CCPs.
Therefore, the exclusion of labor relations from extrajudicial mediation mechanisms is to be commended until conditions for genuine collective participation of workers in all forms of self-composition are present.
The Editorial Board