Labor reform: a setback to social rights

In this issue’s interview, labor judge Ms. Valdete Souto Severo criticizes the Brazilian labor reform because she believes that the points brought up by it violate the International Labor Organization (ILO) norms and are a setback to social rights. Severo refers to “reform” in quotation marks to delimit her understanding that the Brazilian Consolidated Labor Law (CLT) has been changed to protect employers, subverting the historical reason for which labor legislation exists.

Severo has a PhD degree in Labor Law (University of São Paulo) and a Master’s degree in Fundamental Rights (Pontifical Catholic University of Rio Grande do Sul). She is a Labor Judge at the Fourth Region’s Labor Court and a member of the Association of Judges for Democracy. She is a researcher at the Research Group for Labor and Capital (University of São Paulo) and at the National Network for Research and Studies into Labor Law and Social Security. Severo is also a lecturer, coordinator and director at Fundação Escola da Magistratura do Trabalho do Rio Grande do Sul.

Panorama: How have international organizations seen the Brazilian labor reform?

In a negative way. The ILO has already officially declared its concern about the dismantling of the system of protection for those who work brought about by Law No. 13.467/17. Just a few days ago, the ILO issued a recommendation in a report of its Committee of Experts for the Brazilian government to consider revising some points of the labor “reform”.

Panorama: In your view, are there any hindrances in Brazil’s commitment with the conventions of the ILO?

No doubt there are. The provision for intermittent work, the possibility of individually adjusting the loss of the break time, the reference to the fact that issues related to the working time no longer concern health at the workplace and the difficulty that the “reform” creates for accessing justice are all changes that challenge the ILO’s guidelines for labor protection.

Panorama: The current Brazilian reform has a large inspiration on the Spanish reform, which entered into force in the early 2010s. What is the basis of such flexibilization in the Brazilian and Spanish labor laws?

The Brazilian “reform” is, actually, a cutout of the worst points of neoliberal legal changes in Spain, Portugal, Italy and England. Several provisions, which were to some extent copied from recent European laws, have been worsened. That is the case of the intermittent job contract, which has no provision of the minimum number of working hours a month here in Brazil. The alterations related to the so-called “negotiated above the legislated” are not exactly inspired by laws of any other country, since both the legal provision for the trade union actions and the reality of these actions and the state intervention in collective actions are peculiar to Brazil. And there is no single factor to explain our “reform”. Law No. 13.467/17 contains amendments that are clearly pretensions of certain sectors of the economy. These changes constitute copies of foreign legislation and the will of a small group of judges who only after the law was passed was discovered to be composed of “the reform’s parents”. It is extremely aggressive in both material and procedural terms and reveals a moment of retrenchment of social rights which is also being felt in Europe. The explanations for this retraction are manifold. The capital crisis is cyclical and results from circumstances that arise objectively from the system itself — such as unemployment, income concentration, depletion of natural resources, etc. On the other hand, social rights, especially labor rights, are something “ripped out of the capital,” as Marx wrote, which capitalism deals with tensely. Social rights in a capitalist logic of meritocracy and wealth accumulation, in a reality in which opportunities are not or will never be for all, constitute a concession that is only possible if it does not jeopardize this excluding order too much. That is why social rights history, as well as Labor Law history, is a history of advances and setbacks. Social rights have already been considered an aid mechanism to deal with economic crisis, as in the case of the creation of the ILO, in 1919, or the New Deal, but they have also been seen, as currently, as a “scapegoat” or responsible for the objective consequences of our social life choices.

There is also the fact that the history of capital in the last few centuries has oscillated between periods of greater democratic openness, in which the struggle for effective freedom and fairer distribution of goods gains ground, and periods in which fascist discourse, which is a concentrating discourse, enemy of freedoms and, consequently, of the social guarantees, emerges. Unfortunately, the West is undergoing a conservative phase, for many reasons that cannot be listed here. It has reflections not only on the labor “reform”, but also on the way of governing and the choice of rulers in countries of different historical traditions and on policies of intolerance towards differences, among many other examples. We have gone through this before, but it is evident that the more we advance in time under the same form of social organization, the more the number of human beings on Earth increases, the less natural resources and areas of exploitation we have at our disposal, the worse it gets.

Still, Brazil is a country of slave and colonialist tradition, which still functions in the logic of the master-slave relationship, in which social rights have never really been respected. An example of that is our difficulty in enforcing rights that have been in the Constitution for decades, such as the guarantee against arbitrary dismissal. In our culture people think that the worker “is given a job” and the employer “gives employment”. It is difficult to deal with the common sense (ideology) that is pervasive in social relations. Even workers often reverberate the rhetoric about being grateful to their employer, as if they were not selling their life time for payment and even for the absolute impossibility of surviving otherwise in a capitalist system of production.

It is also worth mentioning, so that we can understand the symbolic aspect of this “reform”, that it only became possible in our country after the democratic rupture in 2016. For better or for worse, since we promoted (in a conciliatory way, it is true) the democratic opening after the years of lead of the civil-military dictatorship, we have known the rules of the democratic game. There was no concrete possibility of ostensive abolishment of social rights (the issue was absent in any of the political campaigns that disputed the elections either for the Congress or the presidency of the Republic), because we had not even achieved what is commonly called “minimum civilizational level”. The few achievements obtained during the past fifteen years in Brazil have addressed a kind of income-based inclusion, without succeeding in changing the bases and the quality of the public services regarding education, healthcare and housing and without being able to enforce the Constitution of 1988, as regards the system of labor protection. Still, there was a kind of consensus about the necessity of progress, which the Constitution portrayed. The parliamentary coup that occurred in 2016 prompted a break in this consensus. From then on, everything has been allowed. The rules of the game were changed and no one even pretended they kept being respected. What is valid to some is not valid to others. The parliament — the most conservative of all time in the country, according to official research — approved the “reform” sneakily, changing an original project that had few articles. They voted behind closed doors in exchange of advantages and privileges, through a hit-and-run procedure, completely disregarding the social will. It was somewhat as if the curtain fell and we came across a reality completely different from what we had seen so far. Obviously, this reality has been around for a long time and has a close relationship with the slavery legacy that I mentioned previously. The point is that the disguise that to some extent materialized into practices of containment of the destructive logic of the capital has disappeared. Now we have a government that finances an untrue campaign in favor of the pension reform, passes an ordinance that practically authorizes slavery-like work conditions, a parliament that proposes to criminalize abortion and which continues to pass, almost every day, laws that destroy social guarantees, and a judiciary that cannot accomplish its only mission: to protect and enforce the constitutional order.

Therefore, within a movement that is international and somehow enables the “reform”, there are particular characteristics in the metabolic order of capital in Brazil, and the result is an absurd setback.

Panorama: The debate on the reform of the CLT is quite old and presents interesting nuances, but it has been erroneously portrayed that only neo-liberal sectors have defended changes. Nevertheless, voices in the left of the national political spectrum also direct important criticism to the mentioned code. What are the main aspects highlighted by the Brazilian progressists?

Look, there is no such thing as a “reform” of the CLT. There is no way we can talk about “reform” when it changes more than 200 provisions and all of them, without exceptions, aim to protect employers (as declared by the “parents” of Law 13.467/1207). So, they subvert the historical reason why we have labor norms. It is just like including in the Child and Adolescent Statute a rule allowing sexual abuse in certain circumstances and stating that it is a protection rule or saying that parents have the right to inflict physical and psychological punishment on children and adolescents and insisting that we are “reforming” the statute. Thus, it is not even possible to discuss the necessary criticisms on the labor legislation in the environment that we are facing because there has been a shift in discourse. What we call “reform” (and that is why I am using quotation marks) is a coup whose ultimate goal is to eliminate the notion we have of Labor Law. Then, to not leave the question unanswered, I point out that If we were to talk about criticism to the CLT, from the perspective of the historical reason why labor laws exist (to protect those who work), we would start with the necessary extinction of the dispositions on summary dismissal, which punishes only the employee and is not compatible with the contractual logic that we insist on using when dealing with labor relations.

At this moment of fascist onslaught on labor rights, it seems to me that it is not time to point out the flaws, but rather to recognize the qualities of the labor legal system to be able to understand the perversity of the destruction that Law 13.467/2017 intends to bring about. The labor procedure, for example, has rules that have been copied in the recent amendments of the Civil Procedure Code (CPC). In fact, it has an effectiveness logic that the CPC has not achieved yet. For instance, since the decrees of 1932 that originated the procedural part of the CLT were passed, we have had a single procedure which ends only when the guarantee of life is actually delivered to the creditor, in cases of origin. Until 2005, the CPC distinguished knowledge and execution. So, in addition to the critical aspects that can be raised against the text of the CLT, it seems to me that today it is strategic to defend that set of rules, especially for its symbolic importance. The resistance must be directed towards the repeal of Law No. 13.467/2017 or, at least, the partial neutralization of its harmful effects.

Panorama: After the enforcement of the new rules, what are the most significant changes identified in the routine of the Labor Court?

There is a decrease in the number of lawsuits that may not have as much to do with the fear that the injurious procedural alterations may apply as with the natural expectation of the social actors (especially of the lawyers) about the interpretation (constitutional or not) that the new rules will be given. At court hearings, I notice an arrogant stance on the part of (a few, truly) big company representatives, who invoke the legislative changes as real weapons against the workers’ rights. There is also a growing number of demands in which there is no payment of the resilience funds, which makes the duration of the litigation often fatal, even for the physical survival of those who work.