Last week, the Federal Supreme Court, by majority of votes, declared the unconstitutionality of Precedent 277 of the Superior Labor Court, which recognizes the principle of ultrasound of collective agreements and conventions in the labor scope (ADPF 323). /P>
It is recalled that ultractivity concerns the understanding that negotiated clauses, by collective agreement or agreement, integrate employee employment contracts until another collective bargaining expressly suppresses, modifies or altering.
With the Labor Reform (Law 13.467/2017), ultimately began to be prohibited, with the stipulation of the duration of collective labor agreements for a period exceeding two years. However, the said Precedent remained valid and used in some decisions.
For the rapporteur, Minister Gilmar Mendes, an agreement cannot continue to be valid, being beneficial to only one part of the business relationship.
“Now, if agreements and collective agreements are signed after broad negotiations and mutual concessions, it seems evident that the advantages that the labor justice intends to see incorporated into the individual labor contract are certainly based on signal benefits agreed with the employer. This is, after all, the essence of labor negotiation. It sounds strange, therefore, that only one side of the relationship is still responsible for the commitments made previously-it is emphasized, in the negotiating process of mutual concessions, ”said Minister Rapporteur.
Diverge from the rapporteur Luiz Edson Fachin, Rosa Weber and Ricardo Lewandowski.
Minister Rosa Weber voted for the rejection of the action, for loss of object, since the 2017 Labor Reform vetoed ultrasound in its art. 614, paragraph 3
Minister Lewandowski stressed in his disagreement that the interpretation of TST aims to safeguard the worker who is on the verge of losing all agreed rights due to the end of the deadline stipulated in the instrument. The minister also pointed out that invalidating Precedent no. 277 would violate the principle of prohibition of setback in social rights.
The decision of the Federal Supreme Court removes the legal uncertainty experienced within the scope of collective bargaining so far.
Carpena Advogados team will continue to follow the topic and are available to answer any questions on the subject.
