Limites da prevalência do negociado sobre o legislado na negociação coletiva trabalhista: uma análise do art. 611-A da CLT a partir dos princípios da vedação de retrocesso social e progressividade

Abstract

In the current neoliberal situation, the Labor Reform was enacted (Law 13,467/2017), whose pillar consisted in the institution of the prevalence of the negotiated over the legislated regarding 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 in the bases of Law of Work, which has as its logical foundation the promotion of the human dignity of those who work. Thus, given the imbalance of forces inherent in the capital-labor relationship, labor legislation, doctrine and jurisprudence were built in order to protect workers 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 negotiation caused by Law 13,467/2017, in view of the national and international protection granted to this institute by the principles of progressivity and the prohibition of social retrogression. 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 principle and normative framework derived from this tutelary function, 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 placing collective bargaining hierarchically below the law and the Constitution and reaffirming the principle of protection. The work concludes that the hierarchical inversion in the labor pyramid, intended by Law 13,467/2017, is unconstitutional, in the name of a supposed autonomy of the collective will recently exalted in the jurisprudential construction of the Supreme Court.