The lack of harmony between some recent judgments of the Brazilian Superior Labor Court (known as TST) regarding the autonomy of collective bargaining has highlighted the scenario of legal uncertainty in the current labor judiciary.
The discussion occurs in processes in which there is a collective rule containing the suppression of rights not guaranteed in the Brazilian Federal Constitution, a topic that has already been the subject of analysis by the Brazilian Supreme Federal Court (known as STF) in June/2022, topic 1046, with a fixed thesis of general repercussion for the “validity of collective labor rules that limit or restrict labor rights not constitutionally guaranteed”.
However, in the second semester of 2023 three important decisions were issued by the TST involving this topic, with conflicting theses, as mentioned below:
The 5th Panel of the TST and the SDI-1 have already decided, unanimously, invoking the STF precedent of validity of collective norms that deal with the suppression of rights not guaranteed in the Brazilian Federal Constitution, such as the absence of payment of overtime to external salespersons and suppression of dislocation hours. Even if there are means of controlling working hours by the employer.
The 3rd and 6th Panels of the TST have published conflicting rulings, claiming the invalidity of the collective norm, alleging the possibility of working hours being controlled by the employer, or that the suppression of rights provided for by law would be unconstitutional.
We highlight that Justice Gilmar Mendes, of the STF, in a recently published decision, involving another case, has already presented strong criticisms of the Labor Court, especially regarding TST’s repeated failure to comply with the Supreme Court’s precedents.
Therefore, it is imperative that a statement be made by the TST Plenary involving the matter of prevalence of negotiated rights not guaranteed by the Federal Constitution, taking into account the precedent already established by the STF on the subject, in order to avoid legal uncertainty for employers.