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Reportagem LACCA | Reforma trabalhista

06.jun.2017

Trabalhista

Ana Lúcia Pinke Ribeiro de Paiva

Foi publicada no portal da LACCA (The Latin American Corporate Counsel Association), entidade formada por diretores e gerentes jurídicos de grandes empresas da América Latina, reportagem acerca da lei da reforma trabalhista e as dificuldades em sua aprovação, acentuadas, agora, por um cenário político conturbado. A matéria traz avaliações de diretores jurídicos brasileiros sobre as medidas propostas. Colabora, também, na reportagem, a advogada Ana Lúcia Pinke Ribeiro de Paiva, sócia de Araújo e Policastro Advogados e responsável pela área Trabalhista do escritório.

Veja, abaixo, a íntegra da matéria.

Brazilian GCs call for swift approval of labour reform bill

(Friday, 2 June 2017 – Gwyneth Jones)

Brazil’s latest political crisis has delayed the approval of a labour reform bill which local lawyers say is urgently needed to limit litigation and lower the cost of operating for businesses.

The passage of a labour reform bill aimed at relaxing Brazil’s restrictive labour code has been delayed following the launch of an investigation into allegations President Michel Temer condoned the bribery of a witness in the high-profile Car Wash corruption scandal. Voting on the bill was scheduled in the Senate for Tuesday 23 May, but Senator Ricardo Ferraço said its progress through the legislature would be halted until the political crisis was resolved. While Temer has vehemently denied committing any crime and vowed to push forward with his reform agenda, many local lawyers fear the investigation could derail progress on the intended labour reform and have urged for the bill’s swift approval.

Local lawyers argue that the bill, which would ease restrictions on temporary workers, introduce guarantees for outsourced work and let collective bargaining agreements between unions and employers override some articles in the labour code, would benefit companies by limiting litigation rates and encouraging investment.

The business and legal community has for a long time bemoaned the country’s highly protective labour laws. Regulations governing working hours and employee rights are considerably tougher in Brazil compared to the laws applicable to multinationals operating in the EU or the US. The country also has the highest levels of labour litigation in the Americas and more than 100 million cases are currently pending in employment courts that lack the capacity and resources to deal with the amount of suits that are brought.

GCs say employment courts frequently rule in favour of employees who sign contracts agreeing to certain conditions, such as working flexible shifts, only to later dispute them once the terms no longer suit them. The changes would limit opportunities for individuals with non-standard or flexible working hours to file lawsuits against their employers if they had previously agreed to the conditions of their employment.

Daniel Antonelli, general counsel at tools and plastic manufacturing company Indústrias Romi, highlights the fact that courts are under no obligation to view employment contracts as legally binding if they include flexible working arrangements and says this means the state is currently “excessively” involved in employer/employee relationships. According to Antonelli, the unpredictability of labour courts’ rulings makes it hard for companies to know whether they risk incurring liabilities from labour lawsuits – even if their employees agree to flexible working arrangements – and that this has discouraged foreign companies from investing in Brazil in the past. “The new law could change the scenario for the better,” he adds.

Roberta Carvalhal, GC for port infrastructure company Wilson Sons, says her sector is particularly prone to disputes involving overtime due to the tendency for complex infrastructure projects to experience delays or unforeseen circumstances, which means employees are frequently required to work outside of their standard hours to make up lost time. GCs often attempt to mitigate the viability of claims that workers’ rights are breached when they are asked to work “extraordinary hours” by pre-emptively including clauses for “flexibility” in employee contracts. However, under the current system, Carvalho says they rarely have any certainty whether employment courts would consider these contracts legally binding in the event they are retroactively disputed. By preventing courts from disregarding these clauses, Carvalhal believes the reform would “significantly reduce the contingencies that bring about lawsuits.”

Many lawyers therefore see the potential reform as an opportunity to update what they believe is a largely outdated and overly protective labour code. The Consolidaçao das Leis do Trabalho (CLT) dates back to the 1940s and, according to Araújo e Policastro Advogados labour head Ana Pinke Ribeiro de Paiva, was made by lawmakers who assumed that workers will always be the weakest party in an employment relationship. She says that the CLT has overcompensated for the presumed power imbalance between workers and their employers to the extent that companies are now at the mercy of their employees’ labour claims and the unpredictable rulings of employment courts.

Local lawyers also welcome a clause included in the bill proposing an end to mandatory company contributions to unions. While unions argue this measure would affect employee rights, GCs say there is a strong case for cutting union income, as they have the potential to heavily disrupt business activities by organising strike action and making demands for greater employee benefits and financial rewards. In addition, the sheer number of trade unions in Brazil (over 15,000 compared to just 91 in neighbouring Argentina) is an added complication for GCs. For example, Wilson Sons currently has to negotiate with 48 different unions despite employing fewer than 5,000 employees. The situation has become so complex to manage that Carvalhal has had to appoint a team of lawyers tasked solely with managing communications between the company and the unions. Carvalhal also notes that a high proportion of unions she encounters in her work “only collect the mandatory contributions without even representing the employees properly.”

Pinke has also negotiated with numerous trade union groups on behalf of companies, and agrees that many “are unashamed to do the bare minimum,” which discredits the organisations that genuinely have good intentions. She says that the reform’s proposal to limit mandatory income would force unions to prove their worth more effectively and would result in better conditions for workers and more open negotiations with companies.

While Brazil’s legal community is in favour of the proposals, critics of the bill say that workers risk being exploited, suggesting companies could force their employees to work unsociable hours that they never agreed to and which workers would be powerless to dispute.  On 28 April, labour unions organised the country’s first general strike since 1996 to protest Temer’s labour law proposals and growing anger over the changes threatens to further delay the bill’s progress.

Despite the delays, however, GCs feel they have a duty to support its swift approval. Carvalhal notes that corporate counsel “rarely act in a united fashion,” but since the proposals will ease the pressure on company lawyers in all sectors, she says that now there is a “great opportunity to be active together in support of the bill.” Antonelli also believes GCs should try and mobilise with others in the business community and make “the business case” for the government to push ahead with approving the reforms. “A lot of misinformed people will fight this but it’s beneficial for everyone,” he says. “It is essential that this reform is approved in order for our country to return to [economic] growth.”

Araújo e Policastro