Labor reform: necessary, insufficient and imperfect

05/22/2018


The approval of the labor reform represents an important and necessary change in the Brazilian labor relations system, even if such changes contain imperfections and are not enough to shape legislation according to the demands that reality presents.

First of all, it is important to point out that the legislative changes were not adequately explained to the population, a fact largely due to the ideological interference in discussion that should be prioritized by technical and dispassionate analysis. Although such a picture is understandable, due to the impact to be had on community life, it is regrettable that society has not addressed the main doubts about reform. The dissemination of untruthful information gained breadth with the use of the internet and social networks.

The main change, in more generic terms, is the modification of the type of relationship between actors in the productive field. From the approval of the labor reform, employers and employees (represented, as a rule, by the union) should assume more responsibility for the rules that will regulate the living in the labor environment, serving the labor legislation as a parameter to be observed with respect to the human dignity of the worker . With more legal certainty, the rule imposed by the State will become part of the frame of the framework whose interior agents of the employment relationship will fill with the lines and colors that suits them. It means, above all, greater democratization in the productive sphere, since those who will be affected by the rules can participate in its elaboration, directly or by representation. In this sense, the end of the obligatory union contribution and the normalization of the representation of the employees within the company point to a legal panorama of greater freedom. Active citizenship, therefore, becomes part of everyday work.

There are several goals aimed at changes in labor rules. One is to give greater legal certainty to industrial relations, reducing the possibility that any of the contracting parties will be negatively surprised by something different from what is contained in the law or from what has been validly negotiated. Another intention of the reformist legislator is to adapt the regulation to the needs of the labor market, regulating situations that already exist or that may create new possibilities for hiring, as in the case of devices related to home work and intermittent work. In this way, the aim is to combat informality, with several positive effects for society and for the economy. The third aspect that the reform seeks to change is access to Labor Justice done in bad faith or unnecessarily. This situation, which, among other reasons, provokes an outbreak of labor lawsuits in Brazil, will be curtailed by the establishment of more detailed requirements for the granting of free legal services, the establishment of fees for damages, liability for procedural damages for those who do not act in good faith and demand payment of costs for filing new lawsuits in case of non-attendance at the hearing, unless justified.

The labor reform, although it has several good points, is insufficient, since it does not change, due to legal impossibility (because it demands a change of constitutional provision), a deleterious aspect of the national reality that consists of union unity, a situation that prevents full freedom of association by legally impose the existence of only one union in a certain territory, preventing any competition between entities that want to represent a certain category. The change in labor standards can not be qualified either, since some topics are questionable, such as the determination of a maximum value linked to the worker's salary for the payment of the off-balance-sheet damage. Thus, any moral damage caused to a lower hierarchy worker will result in payment of less than the amount destined for someone of higher rank, who suffers from the same constraint, protecting with less intensity precisely the most socially and economically vulnerable.

Necessary, insufficient and imperfect. This is the labor reform approved in 2017. As for legislation, just as in life, it is not reasonable to expect perfection, it must be content with its possible insufficiency and seek to continually improve it. Reality requires measures that prepare the legal ground for the economy to sow the seeds of growth, foster investment and thus increase the possibilities for work. Dignity for the worker is, above all, to have the means to develop his personality by the exercise of his professional activity. It is unreasonable to await perfect norms, something utopian, which does not exist. Utopia, by the way, by definition, is a non-place. The country can no longer accept this: the place and time for Brazil to evolve are here and now.