Abstract
This article examines the role of collective bargaining in the Brazilian labor law regime. It presents the two main instruments of collective bargaining in Brazil, which are the Collective Bargaining Convention, addressed to labor unions and trade associations, and Collective Bargaining Agreement, for negotiation between companies and labor unions. The peculiarity of the system of union representation in Brazil is a theme of great importance due to its influence on the collective bargaining system as a limiting factor of validity and effectiveness of collective labor instruments. I also analyze the constitutional aspects of collective bargaining, which is a constitutional guarantee, as well as the legal infraconstitutional definition of collective bargaining instruments and their interpretation by labor courts in Brazil. As for the structure of collective bargaining, several points are noteworthy, such as limits of effectiveness, coercitive powers, as well as the detailing of the topics that are usually negotiated collectively in Brazil. The limited role of collective bargaining in establishing minimum working conditions is also a highlight, alongside the important influence of the levels of workers’ organization on the decentralization of the collective bargaining system in Brazil. The influence of the Labor Reform Law of 2017 on the collective bargaining model is seen in a specific topic. Finally, I discuss the evolution of collective bargaining in Brazil, the effects of the modernization of employment relations as a driver in the need to negotiate collectively, and Brazil’s timid international experience in transnational collective bargaining.
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Notes
- 1.
Gomes (1995).
- 2.
Brazilian Constitution Article 8: “The law shall guarantee the freedom of professional or labor union membership, considering the following … VI: the labor unions must participate in all collective bargaining negotiations.”
- 3.
The single-union rule is enforceable for labor unions and trade associations since trade associations are considered as patrons’ unions in Brazil.
- 4.
Brazil has not ratified International Labor Convention n. 87, because even though Brazilian law guarantees protection for the freedom of union membership, it restricts the creation of new unions, representing the same professional categories in the same territory.
- 5.
Brazilian Constitution. Article 8: “The law shall guarantee the freedom of professional or labor union membership, considering the following: […] II - it is forbidden to create and establish any organization (*labor union or trade association), at whatever level or specialization, of any professional or labor category, by interested potential members, in the same territorial unit, which cannot be smaller than a municipality.”
- 6.
The minimum scope of union representation in Brazil is the municipality. This is the local political unit in Brazil, and is akin to a county, except there is a single mayor and municipal council. Municipalities range from lightly populated rural ones, with one or two small towns, to heavily populated urban ones that are part of greater metropolitan regions. There are no unincorporated areas in Brazil.
- 7.
The Brazilian union system still bears some features of the time when union/association activity was highly regulated by the state. Through the years, state regulation has gradually loosened in the direction of greater freedom of union representation and activity. However, some of the old features still remain, such as the territorial limitations of union/association representation.
- 8.
Süssekind et al. (2000).
- 9.
CLT—“Art. 511: The law shall guarantee the freedom of association for the purposes of study, defense and coordination of the economic or professional interests of all those who, as employers, employees, agents or autonomous or liberal professionals, exercise the same activities or professions or activities similar or related thereto. § 1: the solidarity between the economic interests of those who exercise identical, related or similar activities characterizes the social bond which constitutes an economic category. § 2: The similarities between living conditions resulting from the profession, work, employment or activity, including similar or related thereto, carried out by the members of that given category, constitute the basic social expression of a professional category.”
- 10.
Delgado (2008).
- 11.
Concerning the strict exceptions to the rule of representation, please see Sect. 2.6 below.
- 12.
According to Article 581, § 2, of the CLT: “§ 2 – Main activity shall be understood as the activity which characterizes the single product, operation or final objective, for whose realization and execution, all other activities must focus, exclusively in a connected territory.”
- 13.
Brito Filho (2007).
- 14.
Silva (2017a).
- 15.
Decree 3,353 May 13, 1888.
- 16.
The General Shrike of 1917 is considered the first mass work stoppage movement in Brazil, at a time when strikes were repressed violently by the police. It is worth mentioning that the Penal Code of 1890 considered the strike to be a “crime against the freedom to work”, while the Constitution of 1937 declared the strike to be an “antisocial recourse” until the 1940s, with the regulamentation of the right to strike in Brazil.
- 17.
The Vargas government had taken on a wide range of powers after toppling the previous government in the coup d’état of 1930.
- 18.
Biavaschi (2007).
- 19.
Decree 33,196 of June 29, 1953.
- 20.
Decree 7,944 of March 6, 2013.
- 21.
The TST (Tribunal Superior do Trabalho) is a third-instance court, sitting atop a separate Labor Justice System formed of local trial courts and regional appellate courts.
- 22.
For more information on CBAs and CBCs please see the Sect. “1 Introduction: Initial Concepts of Union Representation in Brazil and its Intrinsic Relationship with the Collective Bargaining System”.
- 23.
Süssekind (2004).
- 24.
The FGTS (Fundo de Garantia do Tempo de Serviço) is a fund into which employers must deposit (in general) 8% of each worker’s monthly salary into an individual blocked savings account held at Caixa Econômica Federal, a government owned bank. The worker can withdraw the accrued balance upon dismissal without cause, retirement, or in certain other special cases (e.g., down payment to buy a residence). In the case of dismissal without cause, the company has to pay a 40% indemnization on the balance accrued during the employment relationship.
- 25.
The Brazilian Constitution has over 40 rules and provisions dealing with workers’ rights and relations in the workplace. Most of these rules are listed in Section II (Social Rights), which is included in Title II (Fundamental Rights and Guarantees). These are listed in articles 6 to 11.
- 26.
Silva (2008).
- 27.
As a reference, see Jurisprudential Orientation 31 from the Specialized Subsection on Collective Labor Matters of the Superior Labor Tribunal: Job security for worker who suffered an accident. Agreement ratified, prevailance. Impossibility. Breaching article 118 of law 8,213/91 (inserted on August 19, 1998). “It is not possible for an agreement to prevail over valid legislation when the agreement is less favorable to the worker than the law itself, considering that only the law has the power to limit the will of the parties.”
- 28.
Law 13.467/2017, in force since November 11, 2017.
- 29.
The process of impeaching President Dilma Rousseff started on May 12, 2016, with her temporary removal from office, and ended on August 31, 2016 with her conviction by the Senate for crimes of violation of budget laws, whereupon Vice President Michel Temer took office definitively, to serve out the rest of the term.
- 30.
Provisional measures (medidas provisórias) are presidential decrees that take immediate effect with status of ordinary law, but then are subject to congressional approval/rejection/amendment, under a priority regime. They are limited to “relevant and urgent” matters and are an important mechanism for governability in Brazil’s multiparty presidential system.
- 31.
CLT, Art. 611-A.
- 32.
CLT, Art. 611-B.
- 33.
CLT, Art. 477-A. “Discharges without cause, be they individual, multiple of collective, are legally equated for all purposes, and need no prior authorization from the union entity or formalization of a collective bargaining convention or agreement.”
- 34.
CLT, Art. 611-A, § 2. “The absence of express indication of reciprocal return considerations in collective bargaining conventions or agreements shall not cause their nullity, for not configuring a defect of the contractual transaction.”
- 35.
CLT, art. 611-A. § 3. “When including a clause that reduces the salary or working period, the collective bargaining convention or agreement must specify protection of the employees from dismissal without cause during the effective period of the collective instrument.”
- 36.
Silva (2017b).
- 37.
Melo (2002).
- 38.
In Brazil, it is not possible to engage in collective bargaining of labor matters with committees made up of employees, or elected representatives of employees, as provided for in ILO Convention 135, Art. 3, section b.
- 39.
According to Brazilian law, the federations and confederations of labor unions and trade associations are considered higher level organizations. Federations are made up of at least five unions/associations that represent the absolute majority of a group of economic or professional categories. Confederations are made up of at least three federations and must be established in the country’s capital.
- 40.
A normative judgment is a decision by a labor court that substitutes the will of the parties in collective bargaining establishing work-related conditions.
- 41.
Under Brazilian law, the Labor Prosecutor’s Office can also act as arbitrator in resolving collective labor conflicts, establishing working conditions that are applicable to the parties.
- 42.
CLT Art. 617, main section and first paragraph.
- 43.
Since collective bargaining instruments are enforceable with respect to the workers of a given company, the assembly should have the participation of the interested workers, that is, those who have a working relationship with the company who will be subject to the instrument, regardless of union membership. In Brazil, collective bargaining binds both union and non-union members, given that by law the unions represent the whole category in the territory.
- 44.
Note that the registration is a formality, but not a requirement for the validity of a collective instrument.
- 45.
Russomano (2002).
- 46.
This case is contemplated in Article 581, § 1, of the CLT: “When a company carries out various main activities, without one being clearly more important than the others, each of those activities shall be incorporated into its respective economic category; in such cases, the corresponding dues shall be owed to the corresponding union/association, including of the corresponding subsidiaries, agencies or branches thereto, in accordance with the terms of this article.”
- 47.
This case is contemplated in Article 511, § 3 of the CLT: “Art. 511, § 3: The special professional category includes those employees who exercise special professions or functions by force of specific professional rules or as a consequence of singular conditions of life.”
- 48.
Concerning this topic, Súmula 374 from the Superior Labor Tribunal states: “Employees who belong to a special professional category do not have the right to receive from their employer advantages specified in a collective instrument in which the company was not represented by an entity of its category.”
- 49.
2017 Labor Reform Law, Art. 620: “The terms and conditions agreed to in a collective bargaining agreement shall always prevail over those agreed to in a collective bargaining convention.”
- 50.
Superior Labor Tribunal, Súmula 277: “Collective bargaining agreement or collective bargaining convention. Effectiveness. Ultrativity. The normative clauses of collective bargaining agreements or collective bargaining conventions integrate the individual employment contracts and can only be changed or suppressed via later collective labor negotiations.”
- 51.
Garcia (2002).
- 52.
CLT, art. 8, § 3. “In examining collective bargaining conventions or collective bargaining agreements, the Labor Courts shall exclusively analyze the conformity of the essential elements of the contractual transaction, respecting the rule of art. 104 of Law 10,406 of January 10, 2002 (Civil Code), and shall be guided by the principle of minimum intervention in the autonomy of the collective will.”
- 53.
Even though the country has steadily risen in the UN Human Development Index (HDI), it still occupies 79th place out of 188 nations considered by the UN.
- 54.
Despite the fact that Article 614, § 2 of the CLT allows up to 2 years of validity.
- 55.
At the moment of this writing, the Brazilian Supreme Court is discussing whether a collective bargaining agreement can produce binding obligations after the extinction of its validity. For greater details, please check Sect. 2.6 above.
- 56.
Study by Intersindical Statistics and Socioeconomic Studies (DIEESE). 2004. https://www.dieese.org.br/relatoriotecnico/2004/balancoNegociacoesColetivasBrasil1997_2001.pdf. Accessed July 2017. Still updated.
- 57.
Source: Labor Ministry system (Mediador). Survey carried out of collective bargaining where the parties negotiated the suspension of individual employment contracts and adherence to the Employment Security Program, which allows for the reduction in the wages and working hours in exchange for protection of employees against dismissal without cause.
- 58.
For more details about the single-union system in Brazil, see Sect. 1 above.
- 59.
For more details about the representation of federations and confederations, see Sect. 2.4 above.
- 60.
Internal Accident Prevention Committee: in portuguese Comissão Interna de Prevenção de Acidentes (CIPA).
- 61.
CLT, art. 510-A. “In companies with more than two hundred employees, the election of a committee to represent them is assured, with the purpose of promoting their direct understanding with the employer.”
- 62.
Statistic obtained from the system Mediador, at the site of the Ministry of Labor on October 10, 2017 http://www3.mte.gov.br/sistemas/mediador.
- 63.
For the exceptions mentioned, see Sect. 2.4 above.
- 64.
Slavery was abolished through the Golden Act (Lei Áurea), Imperial Act 3,353, on May 13, 1888.
- 65.
Decree 979 of January 6, 1903.
- 66.
Ferrari et al. (2002).
- 67.
Decree 19,770 of March 19, 1931.
- 68.
Arruda (2007).
- 69.
Menezes (1956).
- 70.
Romita (2001).
- 71.
Boucinhas Filho (2013).
- 72.
Pimenta et al. (2004).
- 73.
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Maia, D.C.M. (2019). Brazil. In: Liukkunen, U. (eds) Collective Bargaining in Labour Law Regimes. Ius Comparatum - Global Studies in Comparative Law, vol 32. Springer, Cham. https://doi.org/10.1007/978-3-030-16977-0_3
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