2023-05-27 23:47:14
Supremo Tribunal Federal (STF)
The plenary of the Federal Supreme Court ( STF
) validated – by a majority – the presidential decree that withdrew Brazil from Convention 158 of the World Labor Organization ( OIT
), which prohibits dismissals without justifiable cause in the adhering countries. The norm has been suspended in Brazil since 1996, due to a complaint presented to the ILO by the then president Fernando Henrique Cardoso
through the decree.
The presidential act was published months after the National Congress approved the country’s accession to the convention. Shortly after the publication of the decree, in early 1997, the National Confederation of Agricultural Workers (Contag) and the Central Única dos Trabalhadores (CUT) called the Supreme Court, alleging that, before taking effect, the country’s withdrawal from the convention would have necessarily pass through the Legislature.
The judgment on the subject lasted more than 25 years in the Supreme Court, being concluded only on the night of this Friday (26). Over that time, there were seven requests for review (more time for analysis), which caused the controversy to extend through various formations of the plenary. The last votes were given by ministers Gilmar Mendes, André Mendonça and Nunes Marques in the virtual plenary, a judgment modality in which ministers have a period of time to vote remotely, without in-person deliberation.
In the end, the labor organizations’ argument was only partially accepted by the Supreme Court. Most ministers agreed that the President of the Republic cannot, from now on, withdraw Brazil from international treaties by decree, since adherence to these international norms itself requires legislative approval. Despite differing grounds, this majority understood, however, that the STF could not act to annul the act signed by FHC. In practice, this keeps Brazil out of ILO Convention 158.
just cause
ILO Convention 158, which Brazil had adhered to after Congress ratified the international treaty, deals with the termination of the employment relationship on the initiative of the employer. The international norm establishes that the dismissal of an employee, in countries adhering to the agreement, can only occur if there is “justified cause related to his capacity or behavior, or based on the needs of the company, establishment or service”.
Created in 1982, the convention has been ratified and is in force in 35 countries, out of the 180 that make up the ILO. Among the nations that have approved and apply the standard are, for example, Australia, Spain, France, Finland, Cameroon, Portugal, Sweden and Turkey, among others. Still according to the text of the convention, the following cannot be given as just cause for dismissal: race, color, sex, marital status, family responsibilities, pregnancy, religion, political opinions, national ancestry or national origin.
A just cause
nor can it be applied in cases of temporary absence from work due to illness or injury; if the employee is a candidate or representative of the workers; union affiliation or participation in union activities and opening of administrative proceedings against the employer for violation of labor standards.
The convention makes room for member countries to exclude some economic activities and include other exceptions to the rule, but lawyers representing the interest of employers argued that dismissal without just cause has been valid for many decades in Brazil, and that a change in rules could lead to immense legal uncertainty. Votes In the end, the dissenting vote of Minister Teori Zavascki prevailed. For him, the democratic spirit of the current Constitution does not allow the idea that the president can – by his sole and exclusive will – withdraw the country from international treaties.
However, such an understanding is innovative, and due to the prudence principle, it could not be applied to past decrees, which followed the “institutional common sense” practiced until now, he said. Zavascki’s vote, now deceased, was praised by the three ministers who last voted on the action and who followed it in full. Minister Dias Toffoli also followed this understanding, thus forming a majority current.
The rapporteur, Maurício Corrêa, now deceased, and Minister Ayres Britto also agreed on the partial merits of the action, in the sense of requiring a vote by Congress so that denouncements of international treaties become perfect legal acts. In the specific case, both also agreed that the Supreme Court could not act to suspend the effectiveness of the specific decree that deals with Convention 158 either, but for another reason, related to the exclusivity of Congress to deliberate on the matter.
Ministers Joaquim Barbosa, Rosa Weber and Ricardo Lewandowski voted for the total merits of the action. By this understanding, not only would the country’s withdrawal from treaties depend on a vote by Congress, but FHC’s decree could not produce internal effects before its approval by parliamentarians.
For this current, which was defeated, ILO Convention 158 should have its effectiveness in Brazil reestablished immediately. Minister Nelson Jobim was also defeated, for whom legislative approval would be unnecessary for the President of the Republic to withdraw Brazil from international treaties, which is why FHC’s decree would be fully and definitively effective.
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