Reflections on the organization of the Brazilian union in the age of the precariat: Reflexoes sobre a organizacao sindical brasileira na era do precariado.
| Autor | Themudo, Tiago Seixas |
Introduction
The growing influence of globalization and technological innovations on all economic sectors has been subject to analysis in the various fields of economic, social and legal knowledge. Indeed, such phenomena span multiple dimensions and have had important repercussions for the world of work, such as the creation of new forms and structures of production, which consequently have an impact on the work of unions that, as private organizations, are destined to defend the fundamental rights of workers (ROMITA, 2005).
For more than three decades studies have shown views regarding the end of jobs and have pointed to the impossibility of re-establishing formal and long-term employment models (RIFKIN, 1995). The emergence of the "uberization" phenomenon proves all the predictions that signaled the subordinate labor crisis, once allegedly protected by the welfare state.
The provision of remotely activated services through the connection of employees to digital platforms - as in the case of Uber drivers - promotes an even more serious breach in the labor protection system when compared with outsourcing as it systematically leads to the precariousness of workers' social rights (MANNRICH, 2017).
In fact, the so-called new forms of work organization are inevitable and consist of a general movement of capitalism worldwide in search of a new, more flexible and efficient productive model in terms of wealth accumulation (AGUIAR, 2018). This model of production, endorsed by neoliberal policies, tends to empty the institutional contents on workers' protection, which points to the need for unions to act as social mechanisms to reestablish the equivalence of forces between capital and labor (CAVALCANTE, 2018).
In 2015, the city of Seattle, Ohio, in the United States, unprecedentedly passed a law allowing the unionization of drivers registered on digital service delivery platforms. Since then, several discussions about the representation of such workers have taken place (ASHER-SCHAPIRO, 2018).
A suit filed by Uber against the Seattle City Hall claims that the drivers have no direct employment relationship with the company. This claim has led to a Supreme Court ruling that it was not possible to form unions. Other United States government sectors act in a similar way by considering and guiding the impossibility of collective organization of application-driven service providers (ASHER-SCHAPIRO, 2018).
In Brazil, discussions about the labor framework applying to ride-sharing drivers began with the filing of individual lawsuits and there have been few cases concerning the formation of unions and associations by digital platform workers. Without peaceful jurisprudence nor specific laws regarding the subject, the phenomenon continues to consolidate itself as a mobility issue in large and small cities.
Work and income are reaffirmed in the consumer society and in liquid relationships (BAUMAN, 2005) as key factors for the centrality, structuring and maintenance of private life. "Uberized" work represents the consolidation of precarious employment, which spills over into precarious housing, family relations and protection by the welfare state (STANDING, 2014).
Therefore, tackling this precariousness requires reflecting on the forms of force correlation between capital and labor. The legal framework applying to the working class recognizes workers' rights, including the right to collectively organize to tackle this problem, which has already been consolidated as a historical outcome of the struggle between capital and labor (PAÇO CUNHA, 2018).
Although it is assumed, as a presupposition of this reflection, that legal forms are forms conditioned by the economic power, "one cannot entirely abstain from existing forms, from the mediations given in one's own society" (PAÇO CUNHA, 2018, pp. 692), which therefore leads us to delimit our investigation to the role of unions in Brazil in face of the growth of precarious work.
In doing so, we sought to identify to what extent the reconstitution of the Brazilian union model is necessary to defend the fundamental rights of digital platform workers?
The first part of this study addresses the structure of union organization in the current Brazilian Law. In the second part, we analyze the new forms of work arising from the use of telematics and their impact on the union model. The last part discusses the importance of readjusting union representation to tackle the social precariousness of work in Brazil.
We carried out an exploratory study using a deductive approach to review bibliographic sources and legislative texts. Given the complexity of the object of study, the findings were analyzed using a critical and sociological view of Law based on a systemic paradigm due to the various aspects relating to the subject. Dogmatic and formalistic approaches have proven inadequate to solve complex conflicts in an equally complex and pluralistic society (ANDRADE, 2005).
It has been hypothesized, as described in the final considerations, that there is a need to redefine the organization of civil society so as to build a new union model to effectively guarantee the fundamental rights of workers in face of the paradigmatic transformations in the world of work.
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Union organization model described in the Brazilian Law
The Brazilian union model is organized in a confederation system, i.e., in three levels, with the union at the bottom, the federation at the intermediate level and the confederation at the highest level (NASCIMENTO, 2015).
The federation consists of an entity that materializes the voluntary grouping of at least five unions representing a particular industry (art. 534, CLT). The confederation is formed by the grouping of at least three federations (art. 535, CLT). In political terms, the federation is formed to be the representative force of a particular union present in a given industry. The same applies to the confederation, which works as a national representation.
Freedom and autonomy of unions are constitutionally guaranteed, but there should be only one union per sector per municipality. Unions can be formed independent of State authorization and any interference or intervention from the Government is forbidden (NASCIMENTO, 2015).
The union unicity system, described in subparagraph II of article 8 of the Federal Constitution, consists, therefore, of three entities: a) Unions that represent the professional and economic sectors, with the municipality being the minimum territory; b) Federations that correspond to the branch of activity formed of five state or interstate unions; and c) Confederations that represent economic sectors and are therefore national entities formed of three federations.
The associative ties of these unions feature an objective element, which consists of a certain territorial base that should not be less than a municipality, and a subjective element that determines the extent of legal representation of employees or employers by their respective unions. Thus, the organization of employees or employers for the creation and maintenance of a union starts from the concept of sector (SANTOS, 2009). In legal terms, there are economic sectors and labor sectors. Economic sectors group employers according to economic activity - either by industry or by business sector.
Labor sectors are divided into professional categories and differentiated categories. Professional categories are those linked to the employer's economic activity, which, under exceptional conditions, may group similar or related activities. The differentiated categories consist of professions regulated by their own statute as they are characterized as specialized activities that require specific technical knowledge (NASCIMENTO, 2015).
Another important constitutional provision refers to the recognition of Conventions and Collective Agreements as normative instruments capable of regulating employment relationships, which, in other words, means the recognition of collective bargaining as a productive process of legal norms. This shows the emergence of a pluralist system originating from the constitutional precepts that provide for the possibility of creation of norms by social groups based on the adoption of the principle of private collective autonomy (SANTOS, 2009).
The private collective autonomy consists of the legal power granted to certain social groups to create legal norms for the regulation of the interests of their collective based on the State's recognition of the legitimacy of the representation of these social groups and the self-organization and self-management freedom provided certain material conditions are met (LAIMER, 2003).
Thus, all legal requirements must be met for a union to be recognized as a legitimate social actor to represent a particular sector. Similarly, for a negotiation to be recognized as a legitimate legal process, all legal procedures must have been complied with (DELGADO, 2018).
By recognizing collective bargaining conventions and agreements as...
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