Collective bargaining is increasingly reaffirming itself as a strategic instrument for business management and labor risk management, allowing sectors and companies to build customized solutions for their specific realities.
Reinforcing this trend, the Brazilian Superior Labor Court has just validated a collective agreement that authorizes the signing of a new probationary contract after a period of 12 months following the previous termination. The decision reinforces that, in the post-Labor Reform context, collective will can prevail over general legislation, provided that constitutional limits are observed.
In the case in question, the Superior Labor Court recognized the validity of the clause stipulated in the collective agreement, understanding that:
(i) After a period of 12 months has elapsed, it would be legitimate to allow the employer to re-evaluate the professional’s suitability for the position; and
(ii) The agreement reached between the company and the union has sufficient normative force to allow for flexibility in the rules of the Consolidation of Labor Laws, in this case, regarding the probationary contract.
The Court further emphasized that the collective agreement resulted from legitimate negotiations, with an economic and productive purpose, without violating the fundamental rights of the workers — a crucial point for the consolidation of collective autonomy.
This position is fully in line with the understanding of the Supreme Federal Court in Theme 1046, which consolidated the thesis that collective agreements can limit or waive rights provided for by law, provided that they do not compromise non-waivable rights. In other words, the Supreme Federal Court provided legal certainty to collective bargaining, removing the stigma of “waiver of rights” and recognizing it as an expression of collective private autonomy, which represents an important step forward in terms of legal security.
The trend is towards consolidation. The Superior Labor Court is preparing to judge Topic 43, which will discuss the validity of a collective bargaining agreement regarding the classification of the degree of unhealthy working conditions. The outcome will be significant: confirming the legitimacy of these clauses could pave the way for agreements that are more aligned with the operational reality of companies, reducing the dependence on technical reports and the legal uncertainty caused by fragmented interpretations.
It is important to emphasize that safety measures that effectively reduce workers’ exposure to hazardous agents should be prioritized, rather than simply maintaining harmful exposures; these, in addition to impacting employees’ health, have implications for social security and entail additional costs for the Brazilian National Institute of Social Security.
Therefore, case law has shown a willingness to respect the collective will when it is the result of transparent, balanced, and formally valid negotiation. These decisions reflect a more rational and predictable legal environment, in which collective bargaining is seen as a legitimate instrument for efficiency, and not as a risk. Companies that approach union negotiations strategically, with qualified technical and legal advice, achieve sustainable results, reduce liabilities, and gain predictability in labor relations.
