Can the New Lula Government Restore and Strengthen Labor and Trade Union Rights in Brazil?
Stanley Gacek is a North American trade union lawyer, a member of the District of Columbia Bar Association since 1979, and the former Deputy Director and Office in Charge of the ILO Mission in Brazil, 2011 to 2016. He attended President Lula’s inauguration in Brasilia as an official international guest on January 1, 2023, as well as the inauguration of Labor Minister Luiz Marinho on January 3. This text was originally written for issue 57 of the WBO Newsletter, published on March 10, 2023. Fill in the form at the bottom of the text to access and subscribe to the WBO weekly newsletter in English.
Given Luiz Inácio Lula da Silva’s personal history as a metalworker and globally recognized trade union leader dedicated to the cause of worker empowerment, as well as advancing Brazilian democracy in general, there is little question that labor and trade union rights will be a critical part of the agenda for his third term as the nation’s president. In his inauguration speech before the Brazilian Congress on January 1, 2023 he mentioned the necessity of new labor legislation, suggesting at least a partial overhauling of the radically neo-liberal 2017 reform of the Consolidation of Labor Laws (CLT), approved by the Brazilian Congress during the Temer administration, and applied with an anti-worker and anti-union vengeance during the Bolsonaro regime. The original CLT had been promulgated by President Vargas eight decades earlier.
What will Lula’s labor policy mean in practice? The inauguration speech of the incoming Labor Minister Luiz Marinho, delivered on January 3, provides us with some clues. (Marinho was the former President of the Metalworkers of the ABC region of Sao Paulo, the former President of the CUT, Brazil’s largest national trade union central, and Labor Minister during the first and second Lula administrations).
Moreover, the transition team for the incoming Lula administration assembled a technical advisory group concerning the future of Brazilian labor relations in mid-November of 2022, composed of the presidents of Brazil’s largest and most representative union centrals, as well as the current and former technical directors of Inter-Union Department of Statistics and Socio-Economic Studies (DIESSE). Based on Marinho’s pronouncements and the themes discussed within the technical advisory group, the most critical objectives appear to be the following:
1- The creation of a sustainable system of trade union financing, based on a genuine representation of the workers and their approval of “union security” type clauses (taxas negociais) through the collective bargaining process. Such a new regime would not mean a return to the old “imposto sindical”, a tax imposed on all workers by legislative fiat to finance the union structure, and which the 2017 reform eliminated. (Taxas negociais are in full conformity with ILO standards and jurisprudence, but the imposto sindical is not).
Unfortunately, the existing judicial precedents at the national level from both the Superior Labor Court (TST) and the Supreme Federal Court (STF), have invalidated such collective bargaining clauses if exacted from the non-members represented by the unions, meaning that a proposal for a constitutional amendment (PEC) or a new judicial interpretation might be necessary. The combined effect of judicially invalidating such union security clauses, along with the legislative prohibition of the old trade union tax and a provisional decree (medida provisória) promulgated by Bolsonaro to prohibit dues checkoff, even in the case of voluntary union members, created a fatal 90 percent drop in trade union budgets in 2019.
2- Restoring the integrity of the collective bargaining and individual labor contract system, by reversing the most perverse aspects of the 2017 reform, will be a major priority. Necessary measures include: (1) recognizing the legality of prior collective agreements until new accords between unions and employers are reached (ultratividade das normas coletivas); (2) only permitting the legal prevalence of collective accords (acordos) with individual employers over the more general sectorial conventions (convenções), if, in fact, such acordos are actually superior in terms of workers’ wages, benefits and terms and conditions of employment; (3) insuring that “the prevalence of the negotiated over the legislated” established by the 2017 reform does not permit an overall deterioration of income and protections for workers; (4) restoring the former legal guarantee that unions evaluate and monitor the creation and rescission of individual employment contracts; and (5) banning “intermittent,” or zero-hour contracts, in most sectors, which provide no guarantee of a paid hour minimum.
“Restoring the integrity of the collective bargaining and individual labor contract system, by reversing the most perverse aspects of the 2017 reform, will be a major priority”
Marinho has pledged to push for a substantial increase in the minimum wage (currently at 1320 reais per month, or about $250), an initiative abandoned by the Bolsonaro regime, making the ravages of inflation even more devastating for the Brazilian working class. He also has promised to shore up and strengthen the Labor Inspectorate in his ministry, critical to combatting child and forced labor in the country, which only increased under the former administration. He also said that new employment protections need to be developed for platform and gig economy workers.
It appears that the national trade union centrals are on board with the agenda just mentioned. Although President Lula might be able to implement some measures by means of executive decrees and medidas provisórias, much will depend on action from a predominantly center-right Congress (including the ratification of amendments to the constitution and favorable interpretations by the labor and federal judiciary. Obtaining consensus from the major employer organizations, including, for example, the national confederations, also will be critical and not without difficulty. The hope is that the shocking and terrifying specter of an attempted coup d’état on January 8 will sensitize the government’s allies to seek real democratization and stability in labor relations, as well as genuine progress in advancing decent employment opportunities.
