Governo vai esperar reação do mercado para regulamentar reforma trabalhista

Governo vai esperar reação do mercado para regulamentar reforma trabalhista

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A julgar pelo acúmulo de dúvidas desde a tramitação da reforma, aprovada em julho pelo Congresso, muitos pontos permanecem obscuros

O governo optou por uma estratégia arriscada no processo de regulamentação das novas normas trabalhistas: vai esperar as reações e, só então, decidir sobre decretos e portarias com detalhamento dos temas mais polêmicos. A julgar pelo acúmulo de dúvidas de patrões, empregados e advogados desde a tramitação da reforma, aprovada em julho pelo Congresso, muitos pontos permanecem obscuros.

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As mudanças na legislação trabalhista entram em vigor no dia 11 de novembro. Um integrante do governo que participa das discussões sobre a reforma confirmou que o plano é “ver primeiro como o mercado vai se comportar”. O ministro do Trabalho, Ronaldo Nogueira, sustenta que a legislação está pronta para entrar em vigor com as alterações feitas no Congresso.

“Todas as modificações feitas ao projeto apresentado pelo Ministério do Trabalho foram debatidas pelos parlamentares e discutidas nas várias comissões, seguindo o rito estabelecido em um regime democrático”, afirmou. O ministério informou que “a lei é autoaplicável e não exige regulamentação”.

Enquanto defensores da reforma, como o presidente do Tribunal Superior do Trabalho (TST), Ives Gandra, afirmam que ela reduzirá disputas judiciais, alguns especialistas apostam que, sem regulamentação, as mudanças tendem a aumentar os confrontos entre trabalhadores e empresas no Judiciário.

Alguns sindicatos já tentam incluir nos acordos com as empresas uma “cláusula de salvaguarda”, para se protegerem de normas que consideram prejudiciais em relação ao que vale hoje.

“A discussão da lei foi açodada. Há vícios que precisam ser corrigidos”, diz o presidente da Associação Nacional dos Magistrados da Justiça do Trabalho (Anamatra), Guilherme Feliciano.

Ainda há dúvidas em questões como a necessidade de aditivos contratuais, a participação de sindicatos em negociações e sobre o trabalho intermitente e em home office. A declaração de juízes trabalhistas de que não seguirão algumas determinações da lei colocou ainda mais lenha na fogueira.

Contestações

Há duas semanas, a Anamatra divulgou uma lista com 125 enunciados contendo recomendações de como os magistrados devem interpretar as novas regras – algumas foram inclusive consideradas inconstitucionais e o entendimento é que não serão seguidas.

“É muito preocupante porque ainda não sabemos como os juízes vão encarar várias situações”, diz o advogado Giancarlo Borba, sócio da área trabalhista do escritório Siqueira Castro. Para os especialistas, os pontos mais polêmicos da reforma só serão pacificados depois de dois ou três anos em análise no Judiciário, alguns deles só quando o Supremo Tribunal Federal (STF) se manifestar.

Mesmo antes de entrar em vigor, o texto da nova legislação deverá passar por mudanças, o que tem causado ainda mais insegurança. O presidente Michel Temer prometeu fazer ajustes acordados com a base aliada durante a tramitação do projeto no Senado.

Depois da revolta do presidente da Câmara, Rodrigo Maia, contra o excesso de medidas provisórias mandadas pelo governo, a tendência é que seja enviado, na primeira quinzena de novembro, um projeto de lei com pedido de urgência.

Perguntas & Respostas

As modificações feitas pela reforma atingem os atuais trabalhadores?
A Confederação Nacional da Indústria (CNI) entende que as novas regras alcançam todos os trabalhadores imediatamente. O Ministério do Trabalho diz que vale para todos os trabalhadores com carteira assinada, exceto quem tem contrato específico firmado com o empregador. Advogados recomendam aditivos em todos os casos para se precaverem, porque não sabem qual será o entendimento dos juízes.

Em quais casos os contratos podem ser negociados entre empregador e empregado, sem o sindicato?
A lei prevê que regras de banco de horas e compensação de jornada, demissão em comum acordo, parcelamento de férias em até três vezes e trabalho em home office podem ser negociados sem sindicatos. Advogados recomendam, para o caso de vários trabalhadores na mesma empresa, que o empregador procure o sindicato para negociação coletiva porque há dúvidas em relação ao entendimento do Judiciário.

E no caso dos trabalhadores hipersuficientes, que ganham acima do dobro do teto do INSS, de R$ 11.060, e têm curso superior?
A negociação pode ser feita individualmente.

Processos trabalhistas que já existem, se forem julgados após 11 de novembro, obedecem às regras antigas ou às novas?
O governo entende que a lei passa a vigorar em 11 de novembro e as sentenças seguem a nova lei. Já a Associação Nacional dos Magistrados da Justiça do Trabalho (Anamatra) entende que o trâmite judicial segue as novas regras, mas que mudanças nos direitos dos trabalhadores não alcançam os contratos celebrados na lei antiga, ou seja, esses processos têm de ser julgados observando as regras anteriores.

Como o empregado pode parcelar férias?
Pode ser acertado pelo trabalhador com o patrão sem necessidade do sindicato. Contratos têm de ser alterados só nos casos em que preveem que as férias não podem ser parceladas. A empresa precisa que o trabalhador assine um documento concordando com o parcelamento, já que o empregado pode optar por 30 dias seguidos.

Quem pode mudar o horário de almoço para 30 minutos?
A mudança tem de ser feita por convenção coletiva, com a participação do sindicato. Empregados hipersuficientes podem negociar a redução individualmente com o empregador.

Trabalho intermitente valerá para empregados de qualquer empresa?
O ministério afirma que se aplica à prestação de serviço não contínua, independentemente do tipo de empregador ou área de atuação. A única exceção prevista é para aeronautas. A Anamatra entende que só vale se a atividade da empresa for intermitente, como uma empresa de eventos ou bufê.

Como será a migração do trabalhador em regime tradicional para o novo teletrabalho? Quem paga equipamentos e custos do teletrabalho, como energia e internet?
O ministério diz que será necessário aditivo contratual detalhando a migração. Equipamentos essenciais à atividade (computador, telefone etc) são de responsabilidade do empregador. Outros custos devem ser especificados no acordo entre patrão e empregado. A Anamatra entende que a previsão de que o teletrabalhador não tem direito a horas extras é irregular.

A jornada 12/36h pode vigorar imediatamente?
A reforma prevê acordo individual entre patrão e empregado. O entendimento da Anamatra, no entanto, é que isso seria inconstitucional, pois a Constituição diz que só pode haver jornada superior a 8 horas com negociação coletiva. Para o Ministério do Trabalho, o tema deve ser regulamentado em projeto de lei ou medida provisória e possivelmente será obrigatória a negociação coletiva.

A rescisão amigável já passa a valer ou ainda são necessárias mudanças?
Vale imediatamente. Segundo o ministério, já foram feitos ajustes nos sistemas da Caixa para o saque de até 80% do FGTS nesses casos.

O “negociado” vale sobre o “legislado” em todas as áreas?
Questões ligadas a saúde e segurança não podem ser flexibilizadas por negociação, nem coletiva, e devem seguir a legislação.

Fonte: Época Negócios
Data: 29 de outubro de 2017
Acesso: 31 de outubro de 2017

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