On 04/17/2020, the Plenary of the Federal Supreme Court (STF), by 7 votes to 3, denied the injunction decision issued by Minister Ricardo Lewandowski in the Direct Unconstitutionality Action (ADI) 6363/2020, proposed by Rede Sustentabilidade, which in some cases could making the individual agreement to reduce salary and working hours unviable, as well as the suspension of the labor contract, under the terms of PM 936/2020.
According to Justice Ricardo Lewandowski, individual agreements to reduce salaries and suspend contracts would only produce full legal effects after the manifestation of the employees’ unions. In other words, different from what Provisional Measure 936/2020 foresees, the injunction conditioned the validity of the agreements to subsequent ratification by the Union in collective bargaining.
However, according to the majority of the Justices, the purpose of PM 936/2020 is the maintenance of jobs, reason why the requirement that Unions compete so that individual agreements become perfected legal acts would considerably diminish the effectiveness of the measure, emergency measure by nature.
Thus, the divergence opened by Justice Alexandre de Moraes prevailed, according to which MP 936/2020 does not violate the Federal Constitution because the constitutional provision contrary to wage reduction without collective bargaining it only worksaria under normal conditions, shouldndo be weighed against the other constitutional guarantees of employment protection and minimum income, in the special moment that we live.
With this decision, the STF maintains the effectiveness of Provisional Measure 936/2020, authorizing individual agreements to reduce salaries and working hours and to suspend the employment contract of employees who earn up to R$3,135.00 and over R$12,202.12 and have higher education degrees.
We clarify that the above text is not exhaustive and does not represent or replace a specific recommendation from an analysis of the case. The labor team of the DDSA – De Luca, Derenusson, Schuttoff Advogados will be available to guide its clients on the main legal measures to face the pandemic, its impacts on labor relations and on the applicability of the Provisional Measure 936/2020.