Limites à negociação coletiva frente ao direito à saúde e a segurança do trabalhador e o princípio do retrocesso social

Abstract

The Federal Constitution of 1988 has a specific chapter for social rights, integrating the list of Fundamental Rights and Guarantees of the citizen, even being safeguarded as an immutable clause. Workers' rights are included in the index of rights covered in the social rights chapter. There is also a provision for the work environment and reflecting on the precepts, an existential environmental minimum of work must be maintained, observing the existing regulations in the national legal system in various hierarchies, in order to protect health and safety, but also the precepts present in the dignity of the human person, in the appreciation of the working man, in the appreciation of life and health, physical and mental. There is also protection of workers' rights in the international sphere. The health and safety of the worker is a matter of extreme importance for the defense of peace and social justice, a driving function of the ILO the way in which the duration of working time is established by the employer to his subordinate is directly related to his health and safety, reflecting on possible occupational diseases and even accidents at work and such an understanding is widely defended in several international diplomas which were ratified by Brazil, the main ILO Conventions that deal with the norms for the preservation of the work environment that were ratified by the Brazil, are Conventions nº 148, 155, 161 and 167, which are mandatory before the State and society, according to constitutional regulations. However, due to various influences in the process of internal economic evolution of the country, the infraconstitutional CLT legislation underwent a change with the enactment of Law No. collectively negotiated. However, especially in the sole paragraph of this same article, there was a determination that the norms referring to the duration of work and its intervals do not constitute norms of health, hygiene and safety for the purposes of collective bargaining. However, this prediction conflicts with fundamental axiological precepts of the Federal Constitution, with literal provisions of the same constitutional diploma and with infraconstitutional provisions, as well as offending international protective precepts of labor law, particularly International Convention nº 98 and 155 of the International Labor Organization - ILO, the UDHR and the ICESCR. The controversy was discussed in the STF on topic 1,046 of general repercussion, considering the constitutionality of the demand. However, it advocates overcoming the established thesis in view of the established foundations.