STF requires private nursing floor without collective agreement – 07/04/2023 – Market

The STF (Federal Supreme Court) determined the payment of the nursing floor to workers in the private sector in cases where there is no collective agreement between the parties, according to the proclamation of the result of the judgment made by the rapporteur of a lawsuit on the subject and president in Court exercise, Luís Roberto Barroso, on Monday night (3).

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

According to the statement from the STF, the so-called average vote defined that there is a prevalence of the obligation of collective union negotiation and, if it does not occur, what is established in the law is valid. The application of the rule will only occur after 60 days after the publication of the result of the judgment, even if any negotiations take place before the deadline.

The average vote stems from the fact that, in the judgment that covered the private sector, there were three different chains of votes.

In all, four ministers —the rapporteur Luís Roberto Barroso, Gilmar Mendes, Cármen Lúcia and André Mendonça— had given a vote that, 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”.

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, had taken a position in favor of implementing the wage floor on a regional basis, through collective bargaining in the respective locations and with the prevalence of what was negotiated over what was legislated. Alexandre de Moraes, Nunes Marques and Luiz Fux followed this understanding.

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

Questioned by the CNS (National Health Confederation), 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.

As of Monday afternoon, the Supreme Court had not yet released the decision, a summary of the legal theses addressed and set at the end of the trial, which made it difficult to estimate the scope of the action.

In September last year, the floor had been initially suspended by Barroso in a lawsuit filed by the CNS 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.

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.

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

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”.