As is common knowledge among labor judges, the statutory purposes that guide the political activities of the National Association of Labor Court Judges—ANAMATRA—include, among others, "acting to defend the interests of society, especially by valuing human labor, respecting citizenship, and implementing social justice, striving for the preservation of public morality, human dignity, the independence of the branches of government, and democratic principles" (Article 5 of the Statute). In current times, reasonably meeting these objectives has been a notably difficult task, especially in the realms of Parliament.
That the composition of the two federal legislative houses would display a conservative and patronage-based profile unprecedented in post-dictatorship Brazil was already known, ever since reading the first parliamentary maps resulting from the 2014 national elections. However, no one imagined they would be so bold.
Indeed, there are many legislative initiatives that, if approved and implemented in their ideological entirety, would be capable of seriously reversing—by one or two centuries—the standards of social protection achieved by workers since the advent of the Second Industrial Revolution.
Two of these initiatives, in particular, deserve mention.
The first of these is Bill No. 30/2015, which aims to regulate outsourcing in Brazil. Bill No. 4,330-C/2004, as approved by the Chamber of Deputies, is now being processed in the Senate. Under the current text (Article 3), the criterion currently in force for assessing the legality of outsourcing, based on the distinction between core and non-core activities, is replaced by another, imported from Europe, based on the idea of "specialization" of the activity. Once approved, Brazilian businesses will be able to outsource any activity, including those essential to their corporate purpose, provided they do so through a "specialized company that provides specific and determined services related to any portion of the contracting party's activity." The bill's supporters claim this will silence the labor courts because there will no longer be the margin of legal uncertainty dictated by the dichotomy between core and non-core activities. They are deluded. The litigation will simply shift. Labor courts will no longer discuss whether the outsourced activity is, for the service-consuming company, purposeful or incidental. They will discuss whether it is in fact provided by a "specialized" company, one with unique expertise for that activity (i.e., whether it truly offers "specialized technical services"), or whether it is merely a semblance of a company, without any technical specialization, which exists primarily to provide ordinary labor to the contracting company. So, for example, does sweeping premises constitute a "specialized technical service"? And counter service? All of this, moreover, with an aggravating factor: Brazil has no accumulated case law regarding the new "paradigm"—that of "specialized technical activities." Anything could happen. Legal uncertainty will triple. Meanwhile, despite being founding members of the International Labor Organization (and signatories of the Declaration of Philadelphia, through the 1948 amendment), we will begin to see, on our near horizon, the explicit commodification of human labor: contracting companies will no longer seek candidates in local and regional markets to fill job openings; instead, they will seek working hours that, offered in "batches," can be acquired at the lowest possible price.
The second is PLC No. 18/2015 (Congress), which converts Provisional Measure No. 680/2015 (which established the Employment Protection Program) into law and now incorporates a legislative "rider" that, similar to what was attempted fourteen years ago with Article 618/CLT, now amends Article 611/CLT to ensure that, as a principle, negotiation prevails over legislation. This bill, in fact, has been advancing swiftly, against all odds, despite its obvious non-compliance. Indeed, legislative contraband inserted into texts that have little to do with them both violate the internal regulations of the Chamber of Deputies and the Senate and are textually repealed by Article 7, II, of LC No. 95/1988 ("the law shall not contain matter extraneous to its purpose or not linked to it by affinity, relevance, or connection").
Nevertheless, PLC No. 18/2015 received broad approval in its special joint committee on October 1st, and now proceeds to a plenary vote. According to the provision hastily inserted into the report, all working conditions negotiated by economic and professional groups will prevail over the current law, "provided they do not contradict or undermine rights provided for in the Federal Constitution, in the ILO conventions [...] ratified by Brazil, and in occupational health, safety, and hygiene standards." At least the rapporteur's (Rep. Daniel Vilela) original report provided that, for negotiations to effectively prevail over legislation, the set of standards set forth in collective bargaining agreements or conventions, "considered globally," would have to be more beneficial than the equivalent legislative set (closely following what was already provided for, in another context, by Law No. 7.064/82). But not even this last shred of protection held up: in the final vote, it was excluded by a suppressive highlight.
With this new legislation, it would become possible, for example, to collectively negotiate the in-kind installments beyond the restrictions of Article 458, §3, of the CLT, paying with alimony the equivalent
of almost the entire worker's remuneration, respecting the limit of thirty percent of the minimum wage (Article 82, sole paragraph, CLT), or perhaps not even that. Divide the thirteenth-month salary into three, four, or five annual installments, as the "categories" deliberate, regardless of any crisis affecting the respective economic sector. Reduce or even eliminate the possibilities for interruption of the employment contract provided for in Article 473 of the CLT (which currently function, for workers, as legally usable paid leave). Labor law, in short, will be greatly discredited.
As we can see, Brazil is slowly paving its way back to the 19th century. Or even further back. Freud had said, in "Totem and Taboo" (1913), that, in relation to sovereigns, primitive peoples were governed by two principles, at once contradictory and complementary: "One must protect oneself from them and one must protect them" (in Frazer's words, "[h]e must not only be guarded, he must also be guarded against"). But to protect oneself from them, it was often imperative to seek their help: "contact with the king becomes a remedy and a prevention for the dangers that result from contact with the king"...
Well then. The first quarter of this century has witnessed, in the field of social rights, the reinvigoration of totemist imagery. Citizens must be protected from the State's neoliberal outbursts
— perhaps through its own healing touch (which will often be the touch of the State-as-judge). And, at the same time, the State must be protected from its own dismantling as a social State. Resisting
the obsolete État gendarme, which history buried over a century ago.
In this nebulous context, of open tensions and a shaky future, the Journal also offers its small contribution. In this volume, we publish articles and judgments that, in different ways, reflect the concrete action of the Labor Judiciary, both in the jurisdiction and in academia, toward the (re)discovery of a living and active social law. This is the good fight to fight.
Enjoy your reading!
The Editorial Board