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Days stopped by server strike must be discounted, except if there is a Compensation agreement


The Plenary of the Brazilian Federal Supreme Court (STF) concluded in the session of Thursday (27) the judgment of Extraordinary Appeal (RE) 693456, with general acknowledged repercussion, which discusses the constitutionality of the discount of days off due to server strike. By 6 votes to 4, the Plenary decided that the public administration should cut the point of the strikers, but admitted the possibility of compensation of days stopped by agreement. It was also decided that the discount could not be made if the strike movement was motivated by the illegal conduct of the Public Power itself.

At the end of the judging, the following general repercussion thesis was approved: "The public administration must discount the days of standstill due to the exercise of the right to strike by public servants, due to the suspension of the functional entailment that results from it, allowing compensation In the case of an agreement, but the discount shall not be incurred if it is established that the strike was caused by an unlawful conduct of the Public Power.” There are at least 126 cases suspended (pending) awaiting this decision.

The judging was resumed with the vote-view of the minister Luís Roberto Barroso. Before the request for a hearing, was voted the rapporteur, Minister Dias Toffoli, had accepted the rebate, and Minister Edson Fachin, who understood that only a court order could determine the cut payment. In his vote, Barroso said that the public administrator not only can, but has a duty to cut the point. "The cut-off point is necessary for the proper distribution of the burdens inherent of the instauration of the strike, and that the paralysis, which generates sacrifice to the population, do not be adopted by the servers without major consequences," Barroso said.

In his vote, the minister endorsed the jurisprudence of the Superior Labor Court (TST), which, in the case of an extended strike, allows an intermediate decision to minimize the discount on wages in order not to excessively burden the worker with the stoppage and discount Not to prejudice their subsistence. Like Barroso, Ministers Teori Zavascki, Luiz Fux, Gilmar Mendes and the Minister Carmen Lúcia followed the vote of the rapporteur, Minister Dias Toffoli, for the possibility of discounting days off.
Minister Teori pointed out that the Federal Constitution does not guarantee the right to strike with payment of salary. Minister Fux recalled the bill410/2011, which regulates the right to strike in the public service, is being processed in the National Congress, noting that the proposal imposes the suspension of the payment of the days not worked as one of the immediate consequences of the strike. Fux emphasized the importance of the decision of the STF in the moment of crisis that crosses the country, in which are coming out deflagrations of striking movements.

In affirming the possibility of discounting days off, Minister Gilmar Mendes cited the almost annual strikes in public universities that last for months without any discount. "Is reasonable subsidized strike? Is anyone able to say that this is lawful? There are strikes around the world and involve the suspension of the employment contract immediately, so much is that strike funds are constituted, "he said.

Divergence

They followed the divergence opened by Minister Edson Fachin at the beginning of the judgment the Minister Rosa Weber, Minister Ricardo Lewandowski and Minister Marco Aurélio. According to Fachin, the adhesion of the public servant to the striking movement cannot represent an economic option to renounce the payment because the strike is its main instrument of claim against the state. Because it is an essential factor in the legal relationship established since the outbreak of the wall movement ,the suspension of payment cannot be decided unilaterally, according to Fachin.

For the ministers who followed the divergence, cannot impose conditions on the exercise of a constitutionally guaranteed right. Minister Lewandowski emphasized that the constituents of 1988 guaranteed the public servant the right to strike, but to this day the National Congress has not legislated on the subject. "There is no specific law. There is no command that obliges the State to make the discount at the moment the strike is triggered. In the face of this, the STF ordered to apply to the public service the law that governs the strike on public sector, "said Minister Lewandowski. But for the minister, the article 7 of the Law of Strike (Law 7,783 / 1989), which provides for the suspension of the employment contract, cannot be applied to the public servant, because the public servant does not have an employment contract, but a Statutory relationship with the State.

Concrete case

In the concrete case, the extraordinary appeal was filed against a ruling of the Court of Justice of Rio de Janeiro (TJ-RJ), which ordered the Foundation of Support to the Technical School of the State of Rio de Janeiro (Faetec) to abstain from making a discount Of payment of workers as a result of a strike carried out between March and May 2006. In the STF, the foundation claimed that the exercise of the right to strike by public servants necessarily implies a discount on days not worked. Faetec's appeal was known in part, and in this part provided.

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