The bus drivers’ strike which affected more than 3 million people in São Paulo this Tuesday (9) did not respect the procedure that any strike must follow, experts say.
According to them, the movement which stopped part of the capital São Paulo could be considered illegal.
The heart of the problem concerns the law itself which regulates the right to strike, provided for in the Federal Constitution. The regulation specifies that the cessation of activities must be approved “during a general meeting which will define the demands of the category and decide on the collective cessation of the provision of services”.
The text also requires prior notification of the strike to both the employer and users. In the case of essential services – which includes public transport, according to the legislation itself – the information must be transmitted at least 72 hours in advance.
This did not happen during this Tuesday’s movement, when drivers abruptly stopped their service in the afternoon to protest the delay of their 13th salary.
This is a legitimate demand which could even give rise to a strike, experts believe, provided that the formal requirements are respected.
In the case of São Paulo, it is possible that a strike will be formally voted on in the early hours of this Wednesday (10). But that wouldn’t start until 72 hours later, according to the law.
“The strike imposed “outside the framework” by the drivers, without gathering and without communication, constitutes an abusive and irregular strike, likely to be declared illegal by the judiciary,” says lawyer Luís Felipe Vicente Pires, prosecutor of the municipality of Bauru, in the interior of São Paulo, and specialist in public law.
The consequences could be multiple, according to him.
“First, the company or employer can take legal action to have the strike declared abusive, including an injunction demanding the immediate return to work and the possible imposition of a fine,” Pires says.
“At the individual level, workers who have interrupted their activities can benefit from salary deductions for days without work,” it specifies, adding that they can also receive a warning and even be dismissed for just cause, depending on the case.
If the bad faith of those mobilized is proven, believes lawyer Thiago Gusmão, specialist in labor law, consequences are expected, including in the criminal field.
“This is contained in the strike law itself. If it is proven that the person initiating the strike acted intentionally, with the intention of harming the company or society, this conduct may constitute an offense and will be subject to criminal law.”
Mayor Ricardo Nunes (MDB) told TV Band that a unionist known as Caixa sent an audio message to employees asking them to get the buses back to start the strike. The drivers then collected the vehicles.
“I spoke to the president of the Union (Valdemir dos Santos Soares) and he told me that this person (Caixa) did it without authorization. He must answer for this criminal act,” Nunes said.
According to SPTrans, the following companies joined the strike: Ambiental, Campo Belo, Express, Gato Preto, Gatusa, Grajaú, KBPX, Metrópole, Mobibrasil, Movebuss, Sambaíba, Santa Brígida, Transppass, Transunião and Via Sudeste. In total, 3.3 million passengers were affected.
The prior communication required by legislation not only allows the user to plan, but also allows the employer to understand the impact of the move.
For this reason, explains lawyer Enzo Pellegrino Pedro, also a specialist in labor law, employers usually go to court to request that part of the service or activity remain in operation during the strike.
In this case, the judiciary generally determines a minimum percentage of employees who must remain active. The goal, according to Pellegrino, is to minimize the impact on the end user.
“This is a request that activities or services continue to operate normally, despite the strike action by those concerned.”
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