Introduction

Struggling against one of the most severe financial and political crises, the government has adopted an agenda that aims to spur an uptick in the economy and, consequently, attract investments, increase the Brazilian gross domestic product and reduce the unemployment rate, which hovers around 13%.

In this regard, the government has proposed labour and social security reforms (based on Bill 38/2017 and Constitution Amendment Proposition 287/2016, respectively), which have been encouraged by economists, entrepreneurs and investors.

Despite the fact that the labour and social security reforms have been heavily debated by both houses of Congress (ie, the House of Representatives and the Senate), following the path provided by the Constitution, some employee unions are urging a general strike across the entire country to obstruct these reforms.

For this reason, there is a material risk of a nationwide strike against the agenda set out by the government, which is set to take place in the coming months.

Right to strike according to labour and employment laws

Brazil has specific regulations regarding the right to strike. The Constitution sets out provisions for union associations' rights and the right to strike, and Federal Law 7,783/1989 provides certain rules which govern striking.

Based on these provisions, the Superior Labour Court has ruled that strikes are allowed by law only when they strictly relate to working conditions, while recognising that strikes which take place for politically motivated purposes are illegal.

The Collective Class Actions' Special Panel of the Superior Labour Court confirmed this position in a case involving a strike made by port employees in order to protest a new regulatory milestone implemented by Provisional Measure 595/2012. The provisional measure set out the federal government's direct and indirect use of ports and port facilities, as well as port operators' activities, among other things. This provisional measure was converted into Law 12,815/2013.

The court ultimately ruled that a strike with a clear political mandate is abusive, as the employer, while directly affected by it, cannot negotiate or pacify the conflict. In this case, the ordinary appeal was deemed partially valid.

According to the Superior Labour Court, "the political nature, not related to professional matters, makes the strike abusive because it is not related to the provisions set forth in Law No. 7,783/89".

Therefore, a strike that aims to obstruct a government reform without a claim relating to working conditions may be considered unlawful, even if the claim may have consequences on issues such as the right to forgo salary payments and disciplinary measures.

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For further information of this topic please contact Domingos Antonio Fortunato Netto or Vivian Simões Falcão Alvim de Oliveira Almeida at Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados by telephone (+55 11 3147 7600) or email (dfortunato@mattosfilho.com.br or vfalcao@mattosfilho.com.br). The Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados website can be accessed at www.mattosfilho.com.br.