Necessidade de um novo desenho jurídico para a subordinação como elemento diferencial da relação da relação de emprego

Abstract

This thesis aims to analyze the position of the Judiciary before the new challenges that labor law goes through, resulting from the restructuring process, based on technologies that have been revolutionizing society. The labor law emerged for the protection of workers who physically were in the "factory floors", submissive to the hierarchical control of the employer, who directed and supervised the personal role of the workers; it was born from the demands for better working conditions, which brought on the revolution in the nineteenth century seeking to ensure the dignity of the human person. Thus, all the protective mesh directed to the employee is a result of this model that progressively becomes outdated, especially because of the technological advances that have changed the concepts of time and space in a globalized world. For thar reason, the well-defined employment relationship loses the sharpness it used to have whereas electronic media is responsible for the transformation of human labor, production is lean, the work becomes precarious, informal, prevails horizontalized business management based on cooperation and not in the classic subordination and it is proclaimed the end of work. The jobs are characterized by their autonomy, insofar as the bond that separates the autonomy of subordination increasingly narrows down, hindering what once seemed a mathematical equation, that is, subordination, non-sporadic, personal and chargeable, representing the recognition of an employment relationship. In this perspective, the Judiciary, in order to face the obstacles ahead, sees in the expansion of the concept of subordination the appropriate solution to the inclusion of workers in the digital era under his protective cloak, differently from other countries that regulated these new workers, who stand in a grise zone, intermediate. However, as a matter of fact, it was not done further study on the issue of work, to the extent that, in fact, work in its essence has changed its direction, and it is from this recognition that it would be possible to discover more effective alternatives for the solution of the supposed crisis of work. We can no longer glimpse the work as in the days when the Fordist system was in force, immaterial labor has been increasing and prospects technological developments, and it is real, not limited to science fiction, intangible, so. Technology permeates daily life and transforms society, advances in robotics, neuroscience and media transmission of information are inexcusable. Not considering these changes consists in denying the evolution, which is inherent to the human being, just as it is the very negation of living work. Thus, the present study found that the course followed by the Brazilian judiciary is far from ideal, it is applying remedial measures guided by the overcame concept of subordination, whose expansion direction does not allow efficiency in judicial services that should ensure workers decency of work. To reach this conclusion the research used literature review, experimental research, and analyzed the position of the Brazilian courts.