Dossier “Meaning and impacts of the labor reform in the labor world”

Presentation: the labor reform, between fraud and hope

Abstract

Much has already been said and written about labor reform. The very term "reform" has already gone through a kind of reform: some write it in quotation marks, while others translate it as "deforma," that is, exactly the opposite.

In fact, our time has not only invented sheep clones, but has produced falsifications of every kind. Many are explicit and innocent, as is the case with groups that imitate the Beatles. Others are hidden and deceptive, like the brand name sneakers made in a clandestine backyard.

 Among the latter falsifications are also immaterial, not palpable ones, as in the case of the politician who plays the democrat but encourages violence; or the press who reports an environmental crime as if it were an accident.

In the same hypothesis we could include the avalanche of fake news that invaded the country, to the point of convincing crowds that in Holland babies are trained for sex, or in Brazil teachers have exchanged research activity for practices such as encouraging "baderna", the communist revolution, and even pedophilia.

Now, it does not seem an exaggeration to us to say that labor reform - or deformation - is part of the second hypothesis. In other words, among the fraudulent falsifications, practiced with the purpose of distorting reality, while at the same time making it even more cruel. The legislator does not sin only for punctual mistakes, slight distractions or lack of technique: substantially, he plays with fraud.

Thus, knowing the growing number of hiring of false self-employed, he takes advantage to facilitate the wave, inventing the figure of the "exclusive self-employed"; knowing that the rules of Civil Law have, as a rule, a different spirit, he suppresses the words that demanded compatibility for their application to Labor Law; not ignoring that in Brazil there is almost a tradition of violations of the law, he blames the worker himself for the number of lawsuits, and seeks to reduce them by making access to Justice difficult. And so on.

In everything, or almost everything, the legislator ignores the lesson of the best doctrine, in the sense that the principles of Labor Law do not only serve the interpreter or applicator. They act, or should act, also in the pre-juridical moment, when the law is not only inspiring but also conditioning its authors. 

The reform is still using, in a not very honest way, some elements of our time, which celebrate participation, freedom and equality. In this sense, it revalues the contract in various ways, either on a collective or individual level, but pretending that power relations are equal, exactly in a historical period in which they have become especially unequal again. Therefore, here too, it fantasizes about neutrality to act to the detriment of the weakest.

But perhaps the most destructive effects of the new law are others.  On the one hand, it accentuates the trend toward extensive and massive mercantilization of human labor and of the man himself who works, especially through outsourcing. On the other hand, it deeply harms the main source of Labor Law - that is, the collective struggle - in a context in which the union was already weakened due to so many other important causes.

As for the last aspect, it does not hurt to notice that Labor Law, basically, has always been, for the most part, the construction of the working class. Even in Brazil, where the presence of the State was undeniably important, the unions have always been present. Moreover, even the norms that we imported in the past brought the marks of the blood of European workers; so, whether here or there, the protégé wove or helped to weave his own protection.

This is perhaps the most striking feature of Labor Law; it is its strong point, which is responsible for its autonomy. However, paradoxically, this is also his weak point, his Achilles' Heel. For it indicates that Labor Law depends on strong unions not only to grow, but also to become effective, that is, to live.

Thus, as we can see, the division that is usually made, in the labor area, between Individual and Collective Law does not have only didactic or methodological purposes; nor is it explained only by the fact that in the former the protagonists are employees and bosses, and in the latter the company and the professional union. The major difference is that Collective Law is an instrument for building Individual Rights, whether in direct or indirect terms, or in terms of precept as a sanction.

And the reform - or deformation - does not act only on the level of the Positive Right. It also acts in the ideological field, and even in the psychological aspect, passing on the idea that the worker no longer needs protection, and reinforcing the false thesis that Labor Law harms the Right to Work. For these and for others, and as it happens today, in the field of weapons, the Public Power tacitly authorizes the employer to practice even more violence, descending from the right to work.

Well. As we were saying, a lot has already been written and said on this subject - and in several areas of knowledge, from the Right to Sociology, to History and Economy. However, rarely has a mixture of sciences and looks like the one we are proposing been produced.