Reforma trabalhista e prevalência do negociado sobre o legislado: a conversão da negociação coletiva em mecanismo de precarização dos pilares do trabalho decente

Abstract

The Brazilian Federal Constitution removed the collective bargaining from the legal limbo, with a view to democratizing popular participation, not only in the political aspect, but also in the social and economic spheres. In this way, the model of labor regulations chosen by the constitutional text brings together the harmonious interaction between the autonomous collective private rules and state heteronomous rules, privileging the one that is more favorable to the worker, in view of the teleological character of the Labor Law, except in the exceptions contained in the constitutional text, as well as in those hypotheses involving absolute unavailability rules. Furthermore, in view of the principle of sectoral adequacy negotiated, the collective bargaining has a fundamental role in the process of improvement of legislation in order to meet the interests of capital and labor equally, leading the labor relations towards social progress, taking into account the prohibition of social retrogression. Nevertheless, the Law No. 13,467/2017 introduced flexibilizing rules into the CLT (Brazilian Labor Law). Among them, the articles 8th, §3 and the article 611-A, which were based on the principle of minimum state intervention in the autonomy of the collective will. However, those articles exacerbated the prevalence of negotiated labor agreements over legislated labor law. As a result, it abandoned the rule: the norm more favorable to the worker is applied. In this vein, the following question arises: is the minimum state intervention in the autonomy of the collective will, in the molds recommended by the reforming text, in line with the constitutional parameters of protection and valorization of human work? Considering the absence of power symmetry between the collective contracting parts, the expansion of possibilities of prevalence of business rules, to the detriment of heteronomous state rules, regardless of reciprocal counterparts, except for rules protected by absolute unavailability, it is not in accordance with the constitutional parameters, once it converts the collective bargaining into an instrument that suppresses or reduces the pillars of decent work. To this end, the elements that make up the relationships that involve the central questioning will be handled through the hermeneutic method, because the Law No. 13,467/2017 exacerbated the circumstances in which the agreements negotiated will prevail over the legislated labor law by establishing the minimum intervention in the autonomy of the collective will, converting the collective bargaining into a precarious mechanism for labor relations. In order to carry out the research, historical, statistical and materialistic procedures will be used. By way of final clarification, it was found that there is no need to talk about power symmetry between collective contracting parts, despite the divergent understanding espoused by the STF (Supreme Federal Court). Finally, it was revealed that the Law No. 13,467/2017 converts collective bargaining into a mechanism that reduces the pillars of decent work; therefore, it is out of line with the constitutional parameters.