Individual agreements between employers and employees will only be effective after the employees' unions have expressed their opinion
One day after publication of Provisional Measure No. 936/2020, which instituted the Emergency Program for Maintenance of Employment and Income, the Rede Sustentabilidade Party filed Direct Unconstitutionality Action No. 6.363 with an injunction requesting the removal of the use of individual agreement to dispose of the measures of salary reduction and suspension of employment contract.
STF Justice Ricardo Lewandowski held that "the 'individual agreements'will only bevalidated, i.e., they will only produce full legal effects, afterthemanifestation of the employees' unions" and that "In the absence of manifestationbythe unions, inthe manner and within the periods established in the labor legislation itself for collective bargaining, as per article 617 of the Consolidation of Labor Laws, it will be lawful for the interested parties to proceed directly in the negotiations until the end of the negotiations.
The Justice argued that the removal of unions from negotiations between employers and employees has the potential to cause losses to the latter, which would go against the logic of Labor Law, which is based on the premise of structural inequality between the poles of the labor relationship. For him, the mere provision that the agreements should be communicated by the employers to the respective union of the category, within 10 calendar days, does not overcome the unconstitutionality pointed out in the initial petition, since the mere communication to the union, devoid of legal consequences, would violate the Federal Constitution.
Thus, he granted in part the injunction "'ad referendum' of the Plenary of the Federal Supreme Court, to give an interpretation in conformity with the Constitution to § 4 of art. 11 of Provisional Measure 936/2020, so as to establish that '[t]he individual agreements for reduction of working hours and salary or temporary suspension of the employment contract [...] shall be communicated by the employers to the respective labor union, within up to ten calendar days, as of the date of their execution', so that the latter, if it so wishes, may initiate collective bargaining, and its inaction shall imply agreement with what was agreed upon by the parties".
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