A discreet decision by the Federal Supreme Court (STF) last week has been praised by Court ministers as a contribution to resolving one of the biggest bottlenecks in the long-awaited, but currently paralyzed, administrative reform.
On the 6th, by 8 votes to 3, the majority of ministers reestablished the validity of a constitutional amendment, approved in 1998, which had allowed the Union, states and municipalities to hire employees under the CLT regime, such as private sector workers. .
This flexibility had been suspended since 2007, which forced public bodies to hire staff only under the so-called statutory regime, in which stability is greater and layoffs are more costly. Under the CLT regime, managers have the possibility of hiring and dismissing employees in a simpler, less costly and bureaucratic way, according to their needs.
“The extinction of the single legal regime is in line with the current demands of public administration and favors the promotion of efficiency, by reducing excessive formalism in administrative management. The change offers greater flexibility for public personnel hiring. Thus, the standard has the potential to improve the quality of personnel spending, by providing hiring models that consider the particularities and specific purposes of each public function, in addition to the needs of the administration”, stated, in the session, the president of the Court, Luís Roberto Barroso.
In the trial, the ministers overturned an injunction granted by minister Cármen Lúcia, in 2007, requested by the PT, to suspend the validity of the constitutional amendment. The party pointed out defects in the processing of the proposed constitutional amendment (PEC) that led to the change, alleging that the same text had not been voted on in the Chamber and the Senate.
Gilmar Mendes opened the divergence and argued that the text was appreciated by both houses of Congress, that what changed was just the location of the norm within the PEC. Kassio Nunes Marques, Flávio Dino, Cristiano Zanin, André Mendonça, Alexandre de Moraes, Dias Toffoli and Barroso adhered to this position. Cármen Lúcia, Edson Fachin and Luiz Fux were defeated.
In the STF judgment, Gilmar Mendes said that, with the judgment, the Union, states and municipalities will now be able to approve laws to define which employees will be hired via CLT and which of those employees will remain in the statutory regime, with more stability.
The idea is that typical State careers, without counterparts in the private sector, which accumulate more responsibility and obligations – auditors, judges, prosecutors, public defenders, police officers, diplomats, etc. – remain within the statutory regime. The rest, with administrative and bureaucratic functions, could be directed to the CLT. It was defined in the judgment that the decision does not affect current employees, who will not change regimes.
To enter any public service, a competition requirement remains. Anyone who enters via CLT loses their stability, but will be entitled to FGTS and unemployment insurance, in case of layoff.
Currently, employees of state-owned companies are no longer hired solely under the Single Legal Regime. This is the case of those who work at Caixa Econômica Federal, Banco do Brasil, Correios and Petrobras, who work according to the rules specific to each of them.
Between 1998 and 2007, before the amendment was suspended by the STF, several governors also contracted via CLT.
Criticism and praise for the STF decision
The STF’s decision was criticized by trade unions. On the website of the Central Única dos Trabalhadores (CUT), the entity’s national secretary of Labor Relations, Sérgio Antiqueira, stated that the change will generate internal disputes and different treatments.
“Without equality between civil servants who perform the same functions, but under different legal regimes, which is already happening, the tendency is for unequal treatment and discontent in the work environment to increase, affecting the provision of public services”, he stated.
Critics also complain about “precariousness” and the possibility of greater political interference in the work of civil servants.
For some experts consulted by the report, the possibility of hiring via CLT is more appropriate for part of the public administration, precisely because of the possibility of shorter hiring periods.
For Washington Barbosa, master in Social and Labor Relations Law and CEO of WB Cursos, the possibility of hiring via CLT facilitates the management of human resources in the public service.
“There are studies that say when you hire a server, you establish a relationship with them of, on average, 59 years, if you consider the years they will work, then the years they retire and then the years their dependents will receive the pension,” he says.
Faced with fluctuating needs, says the expert, CLT becomes more efficient. “20 years from now I will have a completely different need. Suddenly, today I need people in the Ministry of Health, tomorrow more people in the Ministry of Education. Or I have to implement a policy that will take 5 years. And today, when I hire under the single legal regime, I have this relationship for 59 years. And what does that end up doing? You end up hiring less than you should,” he says.
For Flavio Monteiro, professor of Labor Law at Ibmec Belo Horizonte, hiring via CLT tends to be more comprehensive in municipalities and states. “At the federal level, it seems to me that these changes are more difficult, because there are more organized categories of employees, stronger unions. At the state level, this varies greatly. It depends on the conditions of each state, some are more in debt and may need to do this, to be able to meet demands”, he says.
