ADICIONAL DE PENOSIDADE E O VAZIO NORMATIVO: Desafios na caracterização da atividade penosa diante da inércia legislativa brasileira

Abstract

The present study aimed to analyze the additional payment for strenuous work, provided for in article 7, item XXIII, of the 1988 Federal Constitution, its historical requirements, and its practical ineffectiveness. The focus is on the normative gap that prevents the full application of this right, as well as on the legislative inertia that, for over three decades, has failed to regulate the matter. The positions of the Superior Courts are evaluated, which seek to remedy this omission, by confronting the judgments of the Superior Labor Court and the recent decision of the Supreme Federal Court in the Direct Action of Unconstitutionality by Omission (ADO) 74, which recognized the legislative delay, highlighting the legal uncertainty that permeates the topic and the urgent need to create legislative guidelines. Finally, the main consequences of the lack of regulation are emphasized, which result in the ineffectiveness of a fundamental right and the perpetuation of unhealthy working conditions for the worker. For this purpose, the deductive method is used, with a predominantly bibliographic and documentary research methodology with a qualitative approach. The work is justified by the need to analyze the legal and social consequences of such an omission, emphasizing the importance of normative regulation for the worker's full protection.