Law No. 10,097 of 19 December 2000 amended Articles 428 et.
Allowing young people entering the labor market to increase professional experience to the technical training necessary for their careers, the aforementioned articles establish the mandatory hiring of workers, aged between 14 and 24 years, enrolled in technical-professional training programs, for a maximum period of 02 (two) years.
Although Article 429 of the CLT surequires that any employer is required to hire apprentices in numbers equivalent to the minimum of 5% (five percent) of the total number of workers in each establishment, whose functions require vocational training, and a maximum of 15% (fifteen percent), many companies encounter obstacles in meeting this minimum legal quota.
Whether due to the nature of the activity developed by the company, which sometimes bumps into legal criteria that prevent the hiring of young apprentices, or by the lack of professionals for their activity in the labor market, much has been questioned about the possibility of concluding collective agreements or agreements that flexibilize or alter the basis of calculation of the legal quota of learning.
Although the legal system ensures collective bargaining as a constitutional right (Article 7, item XXVI), it cannot be observed in an absolute manner, and it is necessary to look at existing legal impediments and even to any conflicts if confronted with other constitutional rights.
Two of these obstacles are in the Principle of Social Non-Retrogression and the Principle of Progressivity, which require that social rights, a role of which the Right to Work is part, are constantly seeking its improvement in view of the evolution of the human condition.
Since the rules dealing with the learning contract are intended for the insertion of a certain part of the company in the labour market, as well as the protection of a specific group of workers, any collective bargaining agreement on the subject must aim at the increase of the rights already guaranteed by law to this group.
And even if we seek support in the amendments promoted by Law No. 13,467/2017, known as "Labor Reform", which established in Article 611-A of the CLT the prevalence of collective instruments on the law when dealing with specific matters (Article 611a), any negotiation on the subject also bumps into the limitations imposed by Article 611b.
This is because this provision consigns as an illicit object of the Convention or Collective Bargaining Agreement the suppression or reduction of legal protection measures for children and adolescents (item XXIV), a group directly covered by the insertion methods adopted with the creation of the Learning Contract.
Finally, it is noteworthy that, aware of the possible difficulties in hiring apprentices, the legislator himself has already tried to create alternative ways of meeting the legal quota (such as the hiring of apprentices through a non-profit entity provided for in Article 57, §2, of Decree No. 9,579 of November 22, 2018).
It has, therefore, been that the attempt to relax the criteria or even the basis for calculating the legal quota for the hiring of young apprentices is a measure that does not find legal support, by its own legal and constitutional limitations and by the social function related to this obligation.