domingo, 13 de março de 2011

(Texto): Sobre as leis trabalhistas brasileiras

A revista The Economist publicou um artigo no dia 10 de março (link: O título do artigo é "Employer, beware" (Empregador, cuidado). Discordo quase que inteiramente do artigo e enviei um comentário no meu inglês macarrônico (azar deles se não entenderam nada do que escrevi).

O meu comentário segue abaixo, no original, pois quem souber inglês pode até fazer-me o favor de apontar os erros, apesar de não ser esse o objetivo.



I believe the journalist who wrote the article and the publishers of The Economist will never understand the reality in Brazil, in this regard. In Brazil there is not and never there was an equality of conditions in the negotiations between employer and worker. In the vast majority of cases it is impossible a negotation desk between workers and employers and to think that the result may be beneficial, in some way, for the worker.
The Brazilian employers, without the strength of the legal requirement, would not pay anything beyond the salary. Rights that exist today in Brazil, by law, would never be implanted by employers kindly. Benefits such as the Christmas bonus (which we call the 13th salary), the 30-day vacation with pay, the requirement for advance notice of one month for unfair dismissal, the overtime paid with increment, the paid weekly rest. None of this would exist for all workers in Brazil. Maybe one or two categories with stronger unions could, and alone.
The Brazilian businessman is much more predatory than their European counterparts. They do not think twice, they will collect any income from your business instead of sharing a portion with employees, unless it is legally required. It is very common the simulation of bankruptcy just to avoid paying tax or labor rights, but the business owners always go out with your personal safes stuffed with money.
The Labor Court in Brazil is very used simply because employers fail to comply with its obligations. The most violations are the unpaid overtime, unpaid salaries or paid with constant delays, wrongful dismissals of sick people or of pregnant women (both have guarantees in Brazil, and their wages are paid by Social Security and not by the boss and yet they are unfairly dismissed). That is, if there is a huge number of labor claims in Brazil is because employers prefer it that way, because a resolution of labor disputes in the courts easily take five years and, until its resolution, the company may go "bankrupt" or at the end of the process when they can no longer there be any appeal, the company proposes a settlement and pays a percentage of the values initially pleaded by the worker. Too often this happens. During these five years are offered numerous opportunities to the company make an agreement with its workers, but it will delay until when possible. That is the nature of the vast majority of Brazilian employers. One thing is certain: no employer will be required, by the Justice Labour, to pay for something that should not .
Therefore, it is not possible, suddenly, to withdraw all existing guarantees for our workers. We have to change the consciousness of hundreds of thousands of employers and this is impossible in the short or medium term.
Anyway, the growth in recent months, in the labor market in Brazil, especially in formal employment, with all the legal guarantees, has demonstrated that it is possible to maintain those rights at the current level, and some things have already been relaxed in recent years, including the deployment of a more flexible work contract (implemented by Federal Law No. 9601/98).
Another comment I make is about the claim that one can not dismiss "lazy workers" in Brazil or a bankrupt employer can not fire their workers or can not be negotiated some labour rights in Brazil. Certainly they are conveyed information by someone who doesn't knows our labor laws. The Article 482 of our Labour Code (CLT) gives as one of the many reasons for the dismissal with just cause the sloth in the function. That is, the lazy employee can be fired with just cause, however, this "lazy" needs to be evaluated. Also our Federal Constitution, in Article 7, section VI, provides for collective bargaining may be used to reduce wages in Brazil, and there is a law that provides (Law No. 4923/65, Article 2) that companies with proven problematic financial situation may conclude agreement to reduce their burden with workers. These are just examples of what the situation is not so inflexible in Brazil. However, we have rules for that to happen.
It is known that in England and the U.S., to the workers are guaranteed in nothing beyond the salary, and who they do not have anyone to complain, because there is not a Justice Labour. Do not want to make value judgments on that system. It seems to work in these countries, but in Brazil it would be a disaster for workers, making working conditions unbearable, generating lots of strikes that will paralyze the country and its economy for a long time.

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Pode falar :)