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    Cancellation of the Regulatory Clause and Union Participation as Indispensable Parties

    Together with the growing class consciousness driven by the workers’ movement of the Industrial Revolution, unions emerged in order to represent the category as a whole. In Brazil, the transition to the democratization of Unionism began with the validity of the 1988 Federal Constitution, thus expanding the right of negotiation. 

    With a corporatist structure, the union entities are composed of the Unions, Federations and Confederations and beyond this hierarchy, the trade union centers. This system, therefore, has the capacity to defend and fight for the rights of the category, mainly when negotiating Collective Labor and Bargaining Agreements, as acknowledged in article 7, XXVI, of the FC. 

    Law 13.467/2017, known as labor reform, attentive to the need of valuing the guidelines created by collective bargaining as a true autonomous source of labor law, restricted judicial activism and prioritized the principles of collective private autonomy and minimal Government intervention, adding to the Consolidation of Labor Laws (CLT) articles 8, 444, sole paragraph and 611-A, 611-B. 

    Before the aforementioned rule came into effect, it was common for the rules produced from the collective private autonomy of the Unions – instrumentalized by means of Collective Labor and Bargaining Agreements (CLA and CBA) – to have their validity questioned in individual labor claims, being the responsibility of the Judiciary, despite a systematic analysis of the CLA or CBA to separately declare them null or not. 

    However, negotiation prevailed under the new legislation provided that certain legal precepts are observed, including those with regard to matters that cannot be changed, as provided for in article 611-B of the CLT. In addition, it is important to highlight the lawmaker’s intention to protect and honor the category’s interest and preserve the collective private autonomy by including Article 611-A, paragraph 5 in the CLT, which provides for the need for the signatory unions to the Collective Labor or Bargaining Agreement to act as co-defendants required in actions aimed at nullifying regulatory clauses. 

    Therefore, according to the new labor procedural order, when an individual or class action seeks the declaration of nullity of a regulatory clause, the participation of all union entities in the lawsuit as indispensable parties will be necessary under the terms of article 114 of the Code of Civil Procedure. 

    Thus, the lawmaker, in addition to limiting the judge’s review to the essential elements of the legal transaction, according to article 104 of the Civil Code, decided that union entities must also be a party to the proceedings, in order to demonstrate to the judges the teleological relevance of the autonomous normative framework contained in the Collective Labor or Bargaining Agreement. This is because, even if the collective rules seem unfavorable to the category at first, only the parties responsible for the negotiation will be able to demonstrate for what reason and in what context they were negotiated. 

    It is important to highlight that as well as the heteronomous regulatory acts that emanate from the Government, the collective rules should also be systematically analyzed and construed in light of all other provisions of the collective agreement.  

    The acknowledgment of the full validity of the collective rule in what it does not contradict the minimum constitutional and civilizing provisions of workers, gains extreme relevance with the prohibition of ultra-activity, included by the labor reform in article 614, paragraph 3 of the CLT. Bearing in mind that employers’ unions and employers could refuse collective bargaining and simply remove all the rights ensured by previous conventions from the workers.  

    In this sense, the parties grant advantages higher than the labor law provisions in exchange for adapting the situations in which the categories are implicated, considering the different professional realities. For this reason, the participation of the contracting entities in legal and collective agreements appears crucial and unquestionably necessary as a way to enable the demonstration of all the corporate facts and benefits granted that preceded the creation of the rule. 

    Within this context, it is worth nothing that Provisional Measure 808 of 2017 changed the wording of article 611-A, paragraph 5, providing for the need for only union members to appear as parties in collective agreements. However, after the aforementioned PM became ineffective on April 23, 2018, the original wording of article 611-A, paragraph 5, of the CLT was reestablished, underpinning the need for the participation of the unions as indispensable parties in individual actions and in which the declaration of nullity is incidental. This is due to the indispensability of fostering the discussion regarding the validity of conventional rules, aiming to preserve the autonomy of the collective will in order to defend the will of the category that must prevail in relation to the individual.  

    Therefore, the participation of the signatory unions in disputes involving the nullity of Collective Labor and Bargaining Agreements is essential, the request being either express or incidental, with respect to the new legal system and the will of the collective category. 

    It is worth mentioning that the labor reform creates a balancing effect since it authorizes elasticity and flexibility, aiming at protecting workers and also the company’s good standing by always adapting to the interests and reality of the parties. Therefore, respecting what has been negotiated and authorizing the participation of the unions in the dispute when there is a possibility of nullity of the collective rule, honors the principle of private autonomy and fosters debate with respect to the new legal labor system. 

    Rebeca Bispo Bastos is a labor attorney at Tortoro, Madureira & Ragazzi Advogados. She has experience in labor litigation in the banking law sectorShe graduated from São Bernardo do Campo Law School and is currently attending the graduate program in Labor Law at Fundação Getúlio Vargas (FGV). Email: contato@tortoromr.com.br 

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