STF decides that mass layoffs need to go through collective negotiation

The Federal Supreme Court (STF) decided, this Wednesday (8), that mass layoffs need to go through collective negotiations with the categories.

In the understanding of the ministers, however, this opening of collective bargaining does not mean that mass layoffs need to undergo prior authorization from the unions or the conclusion of an agreement. The parameter established as necessary is that a dialogue be opened with the categories so that the collective dismissal is valid.

The proposal made by Minister Luís Roberto Barroso (and which was followed by most of the ministers) is that the STF establish the following understanding to be applied in the decisions of similar cases. “Prior union intervention is an essential procedural requirement for the mass dismissal of workers, which is not to be confused with prior authorization by the union entity or the celebration of a collective agreement”.

In the specific case, the STF ministers rejected, by 7 votes to 3, a lawsuit involving a decision by the Superior Labor Court (TST) on collective dismissal made by Embraer in 2009. The case had general repercussions – that is, the understanding will be applied in other similar episodes.

At the time, the TST decided that the mass dismissal was not abusive, but that, from then on, there was a need to negotiate with the unions before the mass dismissal of workers could be carried out.

Ministers Edson Fachin, Luís Roberto Barroso, Dias Toffoli, Cármen Lúcia, Ricardo Lewandowski, Alexandre de Moraes and Rosa Weber voted against the action. Fachin and Lewandowski, however, were the only ones to speak out against an excerpt of the thesis presented by Barroso, understanding that the thesis changed the understanding established by the TST.

At the beginning of the trial, retired minister Marco Aurélio Mello, rapporteur of the case, voted in favor of the action and in the sense that it is not necessary to have prior collective negotiation with unions for the mass dismissal.

Justices Gilmar Mendes and Nunes Marques accompanied the rapporteur in voting in favor of the action, but the two joined the majority thesis formed by the STF, that collective negotiation with the categories is necessary. Minister André Mendonça, who replaced Marco Aurélio Mello in the STF, also expressed his views on the judgment thesis and voted in favor of Minister Barroso’s understanding.