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Injunctive relief re. union involvement impacts Executive Order 936/20

07/04/2020

After the issuance of Executive Order 936 (“EO 936”), on April 1st, the Rede Sustentabilidade Party filed, on April 2, 2020, a Breach of Constitution Claim (“ADIN”) before the Supreme Court (“STF”). Said ADIN, which was assigned to justice Lewandowski, contained an injunctive relief plea to suspend the effects of the EO 936 due to the Constitutional requirement to have unions participating in negotiations dealing with reduction of salaries and working schedules.
 
In analyzing the case, on April 6, 2020, Justice Lewandowski sustained that union involvement was actually required to implement any measures for the reduction of pay or suspension of employment. He based his decision on (i) the public statement from the National Association of Labor Justice Magistrates – ANAMATR; (ii) note by the National Association of Labor Attorneys – ANPT, with concerns and criticisms of the aforementioned EO 936, as well as (iii) guidance from the International Labor Organization (“ILO”).
 
By granting the injunctive relief, Justice Lewandowski sustained that a mere communication to the union after the agreement did not meet the constitutional requirement to have unions involved in the actual discussion of the matter. Based on this position, individual agreements for both reduction of pay and suspension of employment shall only have full effect following the communication to the union after a term of 10 days, allowing the union to actually respond to the proposal. In case there is no response from the union during said term, then the individual negotiation becomes valid.
 
The decision above will be submitted to plenary session of the STF scheduled for April 24, 2020, when it may be maintained or reverted.
 
We are available to discuss how this decision impacts the measures that were being discussed and alternatives available in each case.

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