Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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The Supreme Federal Court of Brazil approved cuts to the salaries of civil servants for the days they were on strike. The civil servants worked at the Foundation for the Support of Technical Schools (FAETEC), a public institution tied to the Rio de Janeiro State Department of Science and Technology. The civil servants filed an application for a court injunction against FAETEC to refrain from applying the cuts to their wages. The lower courts denied the request for an injunction, but the injunction was later granted on appeal. Subsequently, the Supreme Federal Court of Brazil upheld the deductions and reasoned that cuts on salaries were justified due, in part, to the nature of the role performed by civil servants whose duties are often essential to the functioning of society. The Court acknowledged the potential chilling effect of the wage reductions and therefore greatly emphasized that the Court was not denying nor preventing the right to go on strike but was, instead, highlighting that there were limitations on such a right. The need for a specific law that provides specific rules regarding civil servants on strike was re-affirmed, and the possibility of negotiating compensation for days not worked was also affirmed. Finally, it was argued that the cuts did not amount to punishment and that the decision did not give any authority competence to authorize the exercise of the right to go on strike.
Civil servants from the Foundation for the Support of Technical Schools (FAETEC) held a strike for approximately two months between March and May 2006. The purpose of the strike was to show Governor Rosinha Garotinho their dissatisfaction with the State’s disrespect for labor rights, the lack of salary adjustment, and the disregard for Rio de Janeiro civil servants. FAETEC responded by suspending further salary payments to the strikers.
On December 29, 2006 the civil servants filed a writ of mandamus against FAETEC, requesting that it refrain from applying cuts to the wages of those who participated in the strike. The lower courts denied the request, but the request was later granted by the 16th Chamber of Civil Law of Court of Appeals of the State of Rio de Janeiro (TJRJ). FAETEC appealed against TJRJ’s decision to the Supreme Federal Court of Brazil on June 5, 2012.
Justice Dias Toffoli, the case rapporteur, delivered his opinion to the other justices of the Supreme Federal Court of Brazil (Court). The Court ruled in favor of FAETEC on a 6 to 4 vote.
The ruling of the Court devotes much discussion to the commonalities between strikes in the private sector and strikes in the public sector, a topic that was discussed in the Court’s decision on Writ of Injunction No. 708/DF that permitted civil servants to strike. In that case, it was held that civil servant strikes should no longer be considered illegal due to the absence of laws regulating their performance.
According to Article 7 of the Private Sector Strike Act, an employer is not required to pay for the days in which their employees have been on strike. In the decision regarding Writ of Injunction No. 708/DF, it was clearly stated that the days civil servants spent on strike should be deducted from their wages except when the strike had been triggered by an unlawful act or a breach of duty by the public authorities. Justice Dias Toffoli highlighted that this principle still pertained to the present case. He noted that as there are grounds for suspending work contracts in the private sector, there would also be grounds for suspending legal bonds in the public sector. He argued that there was no reason why the law should be more lenient to civil servants. Instead, he stated that it should be even more rigorous because, unlike the private sector, there was no tension between capital and labor in the public sector. The fundamental character of the services provided by the Government were to be taken into account, including the principle of continuity and the inexcusable duty of the State to provide such services. In light of this, Justice Dias Toffoli held there were sufficient grounds for forbidding long strikes in the public sector.
Justice Dias Toffoli also contested that the tenure of civil servants, and the fact that some of them provide services for which they cannot be directly pressured by the population to get back to their duties, would justify a more rigorous legal regime. The decision also highlighted that, due to the principle of legality and the public nature of their labor regime, the claims of civil servants could not be addressed by means of collective bargaining agreements. However, collective bargaining was not completely rejected.
Justice Dias Toffoli clarified that the Court was not advocating for the entire burden regarding the strike to be carried by the workers, as the burden is shared with public managers who can suffer political consequences for their stance. He added that the suspension of payment was an inherent risk when going on strike and that the risk of salary cuts was an important tool in the balancing of workers’ and employers’ interests. In order to justify the cuts, it was argued that collective strike funds had been set up by workers in other countries as a means of addressing the adverse effect of salary cuts.
It was greatly emphasized throughout the decision that the Court was not denying nor preventing the right to go on strike but was, instead, highlighting that there were limitations on such a right. That is the case, for example, when a strike affects activities that are essential for life in society.
On the other hand, some rights regarding civil servants on strike were reaffirmed, including protections against the immediate resignation of civil servants on a probationary period, and the principle that any dismissal during a strike not preceded by specific administrative proceedings with defense guarantees would be deemed void.
Justice Roberto Barroso also opined that there should be judicial intervention when strikes exceed the period of 30 days. This intervention would define whether salary cuts would only be partial in order not to endanger civil servants’ livelihood. In the opinion of Justice Roberto Barroso, that decision would cause the burden of the strike to be divided between public authorities and workers, resulting in a greater willingness to negotiate. Justice Dias Toffoli also opined that it should be legal to hire temporary workers to replace those who joined the strike, in order to meet the public interest.
The need for a specific law that provides specific rules regarding civil servants on strike was re-affirmed, and the possibility of negotiating compensation for days not worked was also affirmed. Finally, it was argued that the cuts did not amount to punishment and that the decision did not give any authority competence to authorize the exercise of the right to go on strike.
Justice Luiz Fux highlighted that there was a legislative bill under analysis that set forth the downsizing of salaries during public sector strikes. He also emphasized the importance of the decision in light of the country’s moment of crisis, which could possibly give rise to many strike actions.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision contracts expression by endorsing the position that the salaries of civil servants should be cut for the days they are on strike. Such a measure interferes with the right to freedom of expression, and freedom of assembly. The Court went so far as to endorse the position that, given the role played by civil servants in society, even greater regulation may be required in relation to civil servants on strike.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Art. 100 and 37, subparagraph VII
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Case significance refers to how influential the case is and how its significance changes over time.
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