Banca de QUALIFICAÇÃO: INGRID PAZ ESTEVAM

Uma banca de QUALIFICAÇÃO de MESTRADO foi cadastrada pelo programa.
STUDENT : INGRID PAZ ESTEVAM
DATE: 14/07/2021
TIME: 10:00
LOCAL: Faculdade de Direito
TITLE:

THE PREVALENCE OF THE NEGOTIATED OVER THE LEGISLATION IN COLLECTIVE BARGAINING UNDER THE PRINCIPLE OF PROGRESSIVENESS AND THE PRINCIPLE OF PROHIBITION OF SOCIAL REGRESSION

KEY WORDS:

Collective Labor Law, improvement of social condition, unionism, just-labor pyramid, prevalence of the law.

PAGES: 169
BIG AREA: Ciências Sociais Aplicadas
AREA: Direito
SUBÁREA: Direito Público
SPECIALTY: Direito Constitucional
SUMMARY:

The trend towards flexibilization and deregulation of labor rights in times of economic crisis is nothing new. In the current neoliberal context, legislative reforms are especially perpetuated without due democratic debate, without the necessary conformation to the constitutional and international labor legal system. At this juncture, the Labor Reform was enacted (Law 13,467/2017), whose pillar consisted in the institution of the prevalence of the negotiated over the legislated with regard to rights previously guaranteed by the Consolidation of Labor Laws. The insertion of art. 611-A in the CLT granted, at first sight, freedom to the parties of collective bargaining to reduce or suppress rights guaranteed by law, basically reserving only rights expressly provided for in the Federal Constitution of 1988. The legislative modification caused severe ruptures with principles, doctrine and jurisprudence in the labor area, affecting the basic structure and rationale of this legal branch. The Labor Law has as its logical foundation the promotion of the human dignity of those who work, since the employment contract differs from the civil contract in that it has as its object the human workforce, and, as consideration, a portion that guarantees the employee's subsistence. Thus, given the imbalance of forces inherent in this type of contractual relationship, national and international legislation, doctrine and jurisprudence were built to promote equality between employer and employee, protecting the worker in the socioeconomic order through guarantees that promote the improvement of their working conditions. In this context, this research seeks to analyze the denaturation of the constitutional function of collective labor bargaining caused by Law 13.467/2017, given the national and international protection granted to this institute by the principles of progressivity and prohibition of social retrogression, enshrined in both the legal system Brazilian and within the scope of the International Labor Organization and other international diplomas. From the historical description of the formation of unionism, the work rescues the material sources on which the normative foundations of the Collective Labor Law were built, aiming to demonstrate that, despite the improvement of the social condition of the worker, it is an intrinsic function of the union , its negotiation capacity varies in space-time, according to the current social and economic situation – therefore, it cannot do without the protective principle that governs the Labor Law. From this perspective, the research describes the entire principled and normative framework derived from this protective function of the labor branch, presenting the principles of progressivity and the prohibition of retrogression as material limits to the content of collective bargaining. It presents the pyramidal and staggered structure of the labor legal system, its heteronomous and autonomous sources and the special criterion of prevalence that governs its norms, with the aim of positioning collective bargaining hierarchically below the law and reaffirming the principle of protection. The work concludes for the unconstitutionality of the hierarchical inversion in the justlabor pyramid, intended by Law 13,467/2017, in the name of a supposed autonomy of the collective will recently exalted in the jurisprudential construction of the Supreme Court.

BANKING MEMBERS:
Presidente - 1488708 - ALESSANDRA MARCHIONI
Interna - 2194192 - MARIA DA GRACA MARQUES GURGEL
Externa à Instituição - CAROLINA PEREIRA LINS MESQUISTA - UFRJ