Strikes and essential public services

We saw the country plunge into chaos. It is important to seek accurate diagnoses and analyses

*FÁBIO MEDINA OSÓRIO, O Estado de S.Paulo

In Administrative Law there is a classic principle, that of the supremacy of the public interest over the private. Despite many challenges, this principle still exists and must be given due weight by public authorities through the exercise of police power. Also within the scope of the State's intelligence services and its investigative activities, the Executive Branch must pursue the primary public interest as a structuring principle in contemporary democracies.

There are institutions that, even though they are not part of the Executive Branch, hold investigative powers and perform typical administrative acts, even with police power, as is the case of the Public Prosecution Service.

In this context, people have the right to adequate and continuous public or essential services (article 9, § 1, of the Federal Constitution). Law 7,783/89 (Strike Law) defined essential services and activities, without prejudice to other norms later being applied to add new ones.

In regulating the right to strike, the legislator sought to define society's urgent needs, such as medical and hospital care, distribution and sale of medicines and food, public transport, water treatment and supply, production and distribution of electricity, gas, fuels, telecommunications, and data processing linked to essential services.

There is a general clause defining, in article 11, sole paragraph, of the Strike Law, that “unpostponable needs of the community are those which, if not met, place in imminent danger the survival, health or safety of the population.” The legislator used a technique that refers to indeterminate legal concepts: “imminent danger,” “survival,” “health,” “safety.” There can be no total stoppage of services that fall within these legal zones, and it falls, in the first instance, to the Executive Branch or to the Public Prosecution Service itself to make this interpretation.

What have we seen recently in Brazil? Total disorganization in the face of the exercise of the right to strike by a certain segment. The Country plunged into chaos. It is therefore important to seek accurate diagnoses and analyses.

There is no doubt that freight transport is an essential service to Brazilian society, since it is the main component of the logistics system of companies that provide the most varied types of services and supply products, companies that make up national industry and the most diverse segments.

In Brazil the road transport matrix predominates, although the road network is of terrible quality (poorly maintained asphalt or even the product of overbilling, construction failures, unfinished roads and works, unpaved network, potholed lanes).

In the World Bank's logistics performance index, Brazil ranks poorly. In 2016 it ranked 55th among 160 countries.

Little was said, however, about one detail in this strike: paid road haulers are required by law to register in the National Registry of Road Cargo Carriers (RNTRC) and obtain the corresponding registration. There is a rigorous list of requirements for carrying out this economic activity, which seems to contrast with reality (poor working conditions, a perhaps aging truck fleet). In theory, the strikers were all duly identified.

This market would require greater regulatory intervention by public authorities, evidently. There is, certainly, a historical omission in dealing with this subject. Road transport has been apparently abandoned to its own fate, as have our highways.

Law 11,442/17 governs road freight transport on public roads in Brazil and grants the National Land Transport Agency (ANTT) powers to revoke drivers’ registrations and to discipline the segment strictly. The carrier is responsible for the actions or omissions of its employees, agents, representatives or third parties hired or subcontracted to perform the transport services, as if those actions or omissions were its own. The Public Labor Prosecution Service could also have intervened in an abusive strike, if appropriate. There has been no public report of its intervention.

Who are the carriers, drivers and vehicles currently registered in Brazil? Is this registry complete, or can it be improved in its regulatory scope? Are there adequate controls? What is the age of the fleet? How did the Labor Public Prosecution Service act in this strike episode? And each of the institutions competent to resolve the problem? Was it necessary to reach the extreme of a stoppage?

It seems that representatives of drivers and haulage companies had already given signs of dissatisfaction earlier, given the known causes of the crisis that took hold. Since when was the movement detected?

A correct diagnosis of the negotiation process (or lack thereof) would be fundamental to improve the model and prevent potential future errors. It is not a witch hunt, but learning in the crisis.

Transport infrastructure is essential for the development of a country. The crisis resulting from the strike exposed many of Brazil's weaknesses, but mainly one of the reasons why we are less competitive on the international stage: the predominance of road transport, with a possibly old fleet, old roads and a lack of controls by the public authorities.

Logistics costs in the Brazilian economy are high and truckers’ working conditions are probably precarious. This debate needs to be deepened in multiple directions. There are billion-dollar losses borne by Brazilian society. Did the final negotiation safeguard the public interest?

*LAWYER, WAS MINISTER OF THE OFFICE OF THE ATTORNEY GENERAL OF THE UNION (AGU)