Widespread outsourcing, “pejotização” (being hired as a legal entity instead of a worker with rights guaranteed by law) and the non-recognition of employment relationships. In recent years, Brazil has seen an increase in cases in which labor court decisions favorable to workers on issues like these are overturned by the Supreme Court (STF, in Portuguese).
"Since the 1990s, we've had various measures from the Legislative and Judiciary [powers] that made labor rights more precarious. However, what's currently happening in the STF is unprecedented in the history of labor law," says Judge Grijalbo Fernandes Coutinho, from the Regional Labor Court (TRT, in Portuguese) of the 10th Region.
"We are facing labor devastation with the decisions taken by the majority of the Supreme Court," says Coutinho, who is also a member of the National Association of Labor Court Magistrates (ANAMATRA, in Portuguese).
The country’s Supreme Court considered outsourcing to be legal in any type of productive activity and legitimized the 12x36 work schedule (when a person works for 12 hours straight and rests for the next 36). "These are the working hours of the early 19th century," says Grijalbo.
The STF also ruled that collective bargaining agreements can be above the law, even if they establish worse working conditions than those guaranteed by legislation.
In the book “Justiça Política do Capital: a Desconstrução do Direito do Trabalho por Meio de Decisões Judiciais (“Capital's Political Justice: the Dismantling of Labor Law Through Legal Decisions, in a rough translation), the result of his doctorate at the Federal University of Minas Gerais, Grijalbo analyzes what he considers to be 60 major STF decisions in this area between 2007 and 2020. According to him, in 57 of the decisions the Court decided to make labor rights more flexible.
The phenomenon of “pejotização”
Grijalbo Coutinho also says that, in the last four years, the scenario has worsened “dramatically” due to the growth in the number of Labor Court decisions overturned by individual STF ministers in so-called constitutional complaints.
The purpose of these appeals is to guarantee the authority of the Supreme Court’s decision – which is the highest court in the judiciary – when they are allegedly being disrespected by other courts.
Although supposedly exceptional, claims have been filed more frequently by companies and employers since the approval of the Labor Reform in 2017, during the government of Michel Temer (Brazilian Democratic Movement). Cases involving pejotização are the most cited by labor judges heard by Brasil de Fato.
The practice of workers taking a CNPJ – a document similar to the ENI in the US – to be hired as a legal entity (PJ, in Portuguese) is commonly used to pretend there is a working relationship between employee and employer when what actually occurs is a relationship of subordination between employee and employer without labor rights.
“It's a way of defrauding the employment relationship,” sums up Leonardo Vieira Wandelli, a consultant to the UN High Commissioner for Human Rights and a judge at the Regional Labor Court of the 9th Region.
“The problem is that, in complaints, STF ministers began to adopt decisions saying that in cases where the Labor Court recognized employment relationships in situations of pejotização, it would be violating the Supreme Court decision determining the lawfulness of outsourcing,” Wandelli explains.
“There are cases involving the most varied professionals: tradesmen, doctors, journalists,” Grijalbo describes. “And these cases are not about outsourcing. They deal with direct hiring as a PJ. That’s a fraud,” he criticizes.
Furthermore, says Coutinho, “The judges analyzed facts and evidence to make their decisions. After all, labor law is guided by the primacy of reality. Because, otherwise, anyone can draw up a contract and that's that. If the Supreme Court says that form can override reality, that any contract is valid, then it is burying labor law.”
Of the 11 Supreme Court ministers, only Edson Fachin and Flávio Dino (former Lula’s Minister of Justice) have been dissenting voices in cases like these, Wandelli and Coutinho say.
Thus, says Grijalbo, “'We are in the era of the Supreme Court’s dismantling of labor law. The impact of all this is profound on the working class, which is having its rights dilapidated."
Dismantling constitutional labor guarantees
Although the 1988 Constitution introduced a regulatory framework for protecting workers' rights, for Leonardo Wandelli, over the two decades that followed, the STF's stance was one of "negligence" regarding the lack of constitutionality of labor relations in Brazil.
"That was until 2008 or 2010. From then on, what we saw was radical change. The Supreme Court, which had previously avoided labor issues, became very aware of them,” says Wandelli.
"But not to ensure the constitutional standard of protection for human labor – on the contrary," he points out: "Over the last 15 years, the Supreme Court's jurisprudence has been militant in promoting the dismantling of constitutional guarantees for workers."
In Grijalbo Coutinho's perspective, it is a paradox that the STF, "which reacts against right-wing extremism and coup attempts and, at the same time, dismantles the foundations of Labor Law. [Furthermore,] This is happening on the part of a court that, by the way, only judges this matter because it is a constitutional court and these rights are in the Constitution as a conquest of the working class."
"But I don't think the main people affected have realized it or, until now, haven't had the strength to be heard. Who is most affected? The working class," says Coutinho.
Uberization
In this context, the STF is about to rule on a lawsuit between a driver and Uber, which will have general repercussions. The decision on whether or not there is an employment relationship in this case will, therefore, standardize how all legal disputes between platforms and app workers should be dealt with in the country.
"In Brazil, the scenario we are facing now, including the very bill sent to Congress by the current government, shows that there is enormous resistance to ensuring rights for app workers," says Leonardo Wandelli. "Uberization is very serious because it is the main trend in changing labor relations today," he sums up.
And it's happening at a time, says Wandelli, "of an advanced process in which workers have been convinced there is no solidarity between them, that everyone has to pursue their interests alone. So, there is a strong division in each work environment. [There is] The individualism that has been built up by a management model that is designed to produce this isolation."
The way Brazil will deal with “uberized” work relationships is “a decision”, Wandelli says, "about what kind of society we want.”
“Do we want a society in which people's work is a way to integrate, co-participate in society and ensure minimally stable living conditions or do we want a society in which work is increasingly precarious, without ensuring anyone a minimum condition to be in society in a dignified way?” the judge asks: “That's what's at stake.”
Edited by: Matheus Alves de Almeida
