Labor reform: prevalence of Agreements or Collective Bargaining Agreements over the Law

One of the principles established by Law 13467/2017 is the negotiation through a bargaining or collective agreement prevails over the CLT (Consolidation of Labor Laws), except in cases in which the negotiation is considered as an illegal object.

The prevalence of "negotiated over the legislated" brought many discussions when the Labor Reform was approved for remove the presumption of invalidity addressed to adjustments and agreements made individually between workers and employers.

Possible situations

The Article 611-A from CLT, created with the reform, indicates when the agreement or convention may prevail over the law, among others, in cases of:

1) Working day pact, observing the constitutional limits;

2) Annual bank of hours;

3) Work break schedule, respecting the thirty minutes minimum limit for workdays over than six hours;

4) Adhesion to the Insurance-Employment Program (Programa Seguro-Emprego - “PSE”), dealt with in Law 13189/2015;

5) Positions, salaries and functions plan compatible with employee’s personal condition, as well as identification of positions that are functions of trust;

6) Business regulation;

7) Workers' representative at workplace;

8) Teleworking, on-call, and intermittent work;

9) Remuneration per productivity, including tips perceived by the employee, and remuneration per individual performance;

10) Modality of working hours registration;

11) Holiday exchange;

12) Unhealthiness degree framing;

13) Extension of working hours in unhealthy environments, with no Ministry of Labor authorities prior permission;

14) Incentive awards in goods or services, possibly granted in incentive programs;

15) Profit sharing or company’s results.

 

Prohibitions

In turn, the Article 611-B of the CLT treats the negotiations to suppress or reduce the rights related to vacations, 13rd salary, FGTS, unemployment insurance, overtime, prior notice, social security benefits, and health and safety standards as illicit objects. This provision brings an extensive list of such rights.

Agreement or collective bargaining agreement validity

Another amended point by Law 13467/2017 was on duration of agreement or collective bargaining agreement, which may no longer be automatically renewed (article 614, CLT).

 

Individual Free Trading Agreement

With the reform, the possibility of signing an Individual Free Negotiation Agreement (Article 507-A, CLT) was created for cases where the employee has an university education and a monthly salary equal to or greater than twice the social security benefits limit. Such agreement shall be directly negotiated with the employer providing for contractual rules that shall prevail over agreement or collective bargaining agreement.

Commission for employee representation

In companies with over than 200 employees, a representatives commission before the employers (article 510-A, CLT) is allowed to be elected, which will be composed by:

1) Three (3) members, for companies with over than two hundred and up to three thousand employees;

2) Five (5) members, for companies with over than three thousand and up to five thousand employees;

3) Seven (7) members, for companies with over than five thousand employees.