The plenary of the Federal Supreme Court (STF) resumed today (19) the judgment that deals with the validity, in Brazil, of Convention 158 of the International Labor Organization (ILO), according to which dismissal without justifiable cause is forbidden to signatory countries. The norm has been suspended in Brazil since 1996, due to a complaint presented to the ILO by then-president Fernando Henrique Cardoso. The Supreme Court has already formed a majority in the sense that a Congressional manifestation would be necessary for any international treaty to have its application suspended, but there is still disagreement as to whether such an understanding applies to ILO Convention 158. For a current, formed by ministers Teori Zavascki, Dias Toffoli and Gilmar Mendes, the effect of the judgment should only be valid from now on, without affecting the suspension of the ILO norm. Another current – formed by Joaquim Barbosa, Rosa Weber and Ricardo Lewandowski – voted for the ILO Convention to have immediate application in the country, at least until Congress votes on the validity of the complaint presented by FHC. In a third understanding, ministers Maurício Corrêa and Ayres Britto voted for the effects of the convention to remain suspended until the legislative deliberation. Minister Nelson Jobim was the only one, so far, to have voted for the full effectiveness of the complaint and, therefore, for the definitive non-application of the ILO convention in Brazil. In view of the complexity and heated discussions that the issue raises whenever it returns to the agenda of the plenary, the judgment of the case has dragged on for almost 25 years in the Supreme Court, where a direct action of unconstitutionality (ADI) was opened by the National Confederation of Workers in Agriculture (Accounts) and the Central Única dos Trabalhadores (CUT) in 1997. So far, there have been seven requests for review by ministers of the Supreme Court, which caused the controversy to prolong itself through various formations of the plenary. This Friday, the trial was resumed in the virtual plenary, a modality in which the ministers have a pre-defined period to enter the votes in the system, without in-person deliberation. The session is scheduled to last until 23:59 on May 23rd. There are still two votes left for the conclusion of the trial. It is possible, however, that there is a new request for review or highlighting (submission of the case to the physical plenary), which would postpone the outcome. Just cause ILO Convention 158, which Brazil adhered to after approval of the international treaty by Congress, deals with the termination of the employment relationship on the initiative of the employer, and establishes that the dismissal of an employee can only occur if there is “justified cause related to their ability or behavior, or based on the operating needs of the company, establishment or service”. The international standard, created in 1982, 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. Just cause cannot apply in cases of: temporary absence from work due to illness or injury; if the employee is a candidate or representative of the workers; union membership or participation in union activities; 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 norm. However, lawyers representing the interests of employers claim that dismissal without just cause has been valid for many decades in Brazil, and that a change in rules can cause immense legal uncertainty. “Changing the rules of the game from day to night brings great legal uncertainty to society as a whole, and creates a very complex social situation, even in terms of the economy that the country is going through,” said the lawyer and professor to Agência Brasil. Ricardo Guimarães, specialized in labor law. In summary, what Contag and CUT claim in the Supreme Court is that Convention 158 could not have had its application suspended in the national territory due to a unilateral act by the President of the Republic. For this, it would be necessary for the complaint to have also been approved by Congress, since it was the Legislature that approved the ratification of the international norm and its introduction into the national legal system, with the power of ordinary law. Voto-vista This understanding, about the need for Congress to express itself so that an international norm previously ratified by the Legislature can be denounced, has prevailed in the judgment. However, the doubt remains as to whether such an understanding leads to the application or not of ILO Convention 158 in Brazil. In the vote-view he presented this Friday (19), Gilmar Mendes paid tribute to the late minister Teori Zavascki, adhering to his vote and stating that it is not possible to give retroactive effect to the demand for a manifestation by Congress, although such an understanding must be applied from now on on. “I understand that your conciliatory vote [de Teori] brings together not only the best interpretation given to the constitutional question now being debated, but also the most appropriate solution for the treatment that should be given to the Treaties hitherto denounced in the exact terms in which this [Convenção 158 da OIT] it was also, based on the principle of legal certainty “, wrote Mendes. By this current, the complaints presented so far have followed a century-old ′′ institutional common sense “, which is why it would not be reasonable to remove the effectiveness of the complaints already made before the trial. In this line, the application of Convention 158 would be permanently suspended in Brazil, which would maintain, in practice, the dismissal without just cause in the current molds Article expanded at 11:11 am to include the sixth and seventh paragraphs.
Agência Brasil
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