ILO (International Labor Organization) Convention 158 was approved at the 68th meeting of the International Labor Conference in 1982, and came into force internationally in 1985. In Brazil it was ratified on January 4th, 1995, but its legal effectiveness was only confirmed by Decree nº 1,855, from April 10th, 1996.
However, after seven months in force, the Brazilian government, at the time under Fernando Henrique Cardoso (FHC), unilaterally denounced the convention’s ratification (Ofício n. 397, de 20/11/96). With this came Decree 2,100/96 in which the President of the Republic promulgated the denouncement, and the Convention once ratified ceased to be in effect in Brazil as of November 20, 1997.
After the decree some entities, such as the National Confederation of Agricultural Workers (CONTAG), through ADI 1625, and the National Confederation of Trade, Goods, Services and Tourism (CNC), through ADC 39, filed actions with the Supreme Court claiming that the executive power could not process and deliberate on the denunciation, since it was done unilaterally, arguing that only the Congress had attribution to perform such act.
The Convention deals with two issues: (I) justification of the termination of the employment relationship, a unilateral point justified by the right to information, present in the second part of the convention, and (II) consultation with the workers’ representatives, a collective point justified by the prior participation of the union, present in the third part of the convention.
After 25 years, the decision went ahead again last Friday, October 21, in the virtual plenary session, with six votes already cast, with three different sides: (I) partially upheld, with the understanding that the definitive revocation of the effectiveness of the decree is a dependence of the National Congress and that the presidential decree in question should be interpreted in such a way as to condition the denunciation of ILO Convention 158 to a referendum of Congress, on the basis of article 49, item I of the Federal Constitution; (II) unfounded, affirming that “in the Brazilian constitutional system, the denunciation of an international treaty is done unilaterally by the President of the Republic, who is the body that represents the country in the action”, according to the vote of Nelson Jobim; and (III) founded, defending that there was a violation of the constitutional text since the legislative process was not respected.
The decision may limit the employer’s decision regarding the termination of the employment contract, being also questioned the effect it will have, which may be retroactive (ex nunc) or not (ex tunc).
The lawsuit had successive requests for examination and last Friday, October 28, there was a new request for examination by Minister Gilmar Mendes, suspending the virtual trial of the case once again.
Written by Daniel Rangel, Associate at Drummond Advisors, and Julia Soares, Drummond Advisors’ Labor Law Intern