‎Brazil News

 

Minister Mauricio  Delgado proposed standardizing the topic, arguing that the divergence of understandings compromises equality and legal certainty.

From the Editor

 

The TST decided, by majority, that the applicability of the rule requiring common agreement for filing a collective dispute in cases where one of the parties refuses to participate in the collective bargaining process, in possible violation of the principle of good faith, will be the subject of discussion. The controversy will be submitted to the repetitive appeals system, so that the thesis approved in the judgment on the merits must be applied to all cases that deal with the same topic.

 

The crux of the matter lies in art. 114, paragraph 2, of the Federal Constitution , which establishes that, when one of the parties refuses to participate in negotiation or arbitration, the parties may, by mutual agreement, file a collective dispute of an economic nature. The requirement of "common agreement" was introduced by EC 45/04 and, since then, the SDC - Specialized Section in Collective Disputes of the TST has established the understanding that the agreement of the union or member of the economic category does not need to be expressed, and may be tacit.

 

However, practice has demonstrated the existence of cases in which one of the parties refuses to negotiate and agree to the filing of a dispute, which has generated conflicting decisions in both the SDC and the TRTs. Given this, Minister Mauricio Delgado proposed standardizing the topic, arguing that the divergence of understandings compromises equality and legal security.

 

 

TST discusses requirement of mutual agreement for filing collective dispute. 

The minister also highlighted that statistical data reinforces the relevance of the matter, considering that, in 2023, of the 94 collective disputes of an economic nature judged by the SDC, 32 dealt with the legal issue relating to the assumption of "common agreement". In 2022, there were 66 lawsuits on the topic, out of a total of 130 actions of this type.

 

The president of the TST, minister . corroborates the need for standardization, considering that 50 cases on the subject are currently being processed in the Court. In TRTs, 634 were received in 2021, 549 in 2022 and 518 in 2023, totaling around 1,600 cases in three years.

 

In addition to the numbers, the rapporteur highlights that the issue impacts socio-labor relations, due to its influence on collective bargaining, " the most relevant method of pacifying conflicts in contemporary times and an extremely effective instrument for democratizing power in the relations encompassed by it ".

 

In summary, the legal issue to be debated consists of determining whether the arbitrary refusal of the business union or member of the economic category to participate in the labor collective bargaining process violates objective good faith and, consequently, configures the common tacit agreement for the establishment collective dispute of an economic nature.

 

Process : IRDR-1000907-30.2023.5.00.0000

Follow us on

 

 

Competence

TST: Federation can sign collective agreement if union does not negotiate

For SDC, the union's refusal to take over the direction of collective bargaining was evident.

From the Editor

 

Tuesday, February 27, 2024

 

Updated at 14:21

 

To share

 

The  SDC, a Specialized Section on Collective Disputes of the TST, recognized the validity of a collective labor agreement entered into between a workers' federation and a company, due to the union's refusal to participate in collective bargaining. The panel emphasized that, in this case, the Court's case law recognizes the competence of federations to formalize agreements.

 

 /DF -  Union of Radio and Television Workers of the Federal District filed a lawsuit to annul the collective labor agreement signed  as a second-level union, would not have the legitimacy to represent workers in its territorial base nor to sign a collective bargaining agreement.

 

 

Federation can sign collective agreement when union refuses to lead negotiations. 

According to his claim,  and the employers' union   -  Union of Housekeeping, Conservation, Temporary Work and Outsourced Services Companies of the Federal District have had a collective agreement in force for several years, considering that around 60% of category of radio broadcasters in the Federal District provide services as outsourced.

 

JME, in its defense, maintained that its predominant activity is radio and, therefore, it is not linked to /DF, but to  /DF -  Union of Television and Radio Companies and Magazines and Newspapers. However and  had not reached an agreement since 2018 and, in 2021,  did not respond to several requests to negotiate, claiming that the collective agreement signed with  should be applied.

 

The TRT of the 10th region dismissed the annulment action as unfounded. The collegiate considered it demonstrated, among other facts, that DF refused to negotiate directly with JME, out of fear that the decision adopted by the assembly would harm the minimum salaries already achieved in other collective agreements with different economic categories. For the TRT, this refusal was based on political interests that do not justify the failure to meet the interests of JME employees.

 

The rapporteur of the union's ordinary appeal, minister Maria Cristina , rejected the allegation that its refusal to conclude a collective agreement aimed to guarantee benefits from the agreement, because, according to the law, the agreement prevails over the collective labor agreement.

 

For the minister, due to the union's evident inertia in the face of negotiation requests, the federation's subsidiary legitimacy makes the collective labor agreement signed with the company valid. Therefore, the nullity of the annulment action was maintained, and DF was ordered to pay procedural costs and legal fees.

 

Case : 58-33.2022.5.10.0000

 

 link: https://www.migalhas.com.br/quentes/402481/tst-federacao-pode-assinar-acordo-coletivo-se-sindicato-nao-negociar