Nursing floor: STF requires prior agreement in the private sector – 07/03/2023 – Market

The STF (Federal Supreme Court) established the understanding that a prior negotiation between those involved is necessary to set the national nursing floor for workers in the private sector, but there are doubts as to the scope of the initiative.

The trial held in the virtual plenary was resumed on the last day 23 and ended last Friday.

In all, four ministers —the rapporteur Luís Roberto Barroso, Gilmar Mendes, Cármen Lúcia and André Mendonça— voted which, among other initiatives, provides that the implementation of the floor in the private network “should be preceded by collective negotiations between the parties, as an essential procedural requirement, taking into account the concern with mass layoffs or damage to health services”.

The rapporteur’s concern is to avoid “mass layoffs or damage to health services”. If there is no agreement within a period of 60 days, the rules laid down in last year’s law that instituted the floor will apply.

Another four ministers, headed by Dias Toffoli, were in favor of implementing the minimum wage on a regional basis, through collective bargaining in the respective locations and with the prevalence of negotiated over legislated. Alexandre de Moraes, Nunes Marques and Luiz Fux followed this understanding.

In a minority, ministers Edson Fachin and Rosa Weber, president of the STF, voted for the floor to be implemented immediately by both the public and private sectors without any kind of restriction.

Questioned by the National Health Confederation (CNS), the norm approved by Congress establishes a salary floor of R$ 4,750 for nurses; 70% of this amount to nursing technicians; and 50% for auxiliary nurses and midwives, both in the public and private sectors.

The Supreme Court has not yet released the judgment of the decision, a summary of the legal theses addressed and fixed at the end of the trial, which makes it difficult to estimate the scope of the trial.

For lawyer Marcus Pessanha, specialist in administrative law and partner at Schuch Advogados, the understanding that should prevail for the private sector is the payment of the “floor conditioned to prior union negotiation, as it aggregates the positions of the groups of ministers” and allows the participation of the private sector in decision-making processes, since the implementation of the floor will lead to changes in the financial balance of hospitals and private clinics.

For labor lawyer Tayane Dalazen, partner at Dalazen, Pessoa & Bresciani Advogados, the payment of the floor will be conditioned to negotiation, which emphasizes the new role of unions in view of the prevalence of negotiated over legislated in light of the recent labor reform.

WORK HOURS

In another judgment, the STF recognized the validity of adopting a 12-hour working day followed by 36 hours of uninterrupted rest, provided that breaks for rest and food are respected.

For labor law specialist Marcos Saraiva, also a partner at Dalazen, Pessoa & Bresciani Advogados, the measure, adopted in the labor reform, “privileges the autonomy of the will, allowing the parties involved in the employment relationship to discipline their interests in accordance with their preferences, without union interference”.

In September last year, the floor had been initially suspended by Barroso in a lawsuit filed by the National Confederation of Health, Hospitals, Establishments and Services (CNSaúde) that had questioned the law that established the national floor. At the time, he had understood that the immediate entry into force of the floor could have an impact on the provision of health services.

The norm had been approved by the National Congress and sanctioned in August by then-President Jair Bolsonaro.