Negociado sobre o Legislado: análise dos votos do STF nos julgamentos do RE 590.415 e Recurso Extraordinário 895.759

Abstract

The present study emphasizes that the employer and employee relationship in collective aspect is a concern of Collective Labor Law, it being a special branch of Labor Law. Throughout history, the increasing empowerment of the working class has seemed mainly with the formation of the unions that aimed to establish a balance of the negotiating between the workers and the employers, which from the beginning of the society had greater power of decision and control over the work. The unions acting in the defense of their represented taking the collective bargaining, it materialized in the species collective bargaining agreement and collective bargaining agreement. These instruments reflect in the dialogue between these collective work beings, it enabling social balance and democratizing as work relations. This was possible after the Constitution of 1988, which gave the unions various guarantees of creation and performance; however, it was also limited and weakened their representativeness due many entities accommodated with the privileges obtained. The objective of this work is to contribute to the private autonomy of these entities that is a topic of great discussion currently. Should prevails what was negotiated between collective bargaining beings or what had been legislated prevail? The importance of this topic has reached the Labor Courts and including the Federal Superior Court. In the Federal Superior Court, emphasis is placed on “Recursos Extraordinários” (RE) 590.415 from SC, which there was the discussion of limits on the transaction of rights via incentive dismissal plans approved in collective bargaining; and RE 895.759 PE, which deals with the suppression of hours in itinere by granting other advantages also in a collective bargaining environment. In the judgment of these appeals, the decision was favorable to the possibility of maintaining the collective will even in the face of a question not possible in the legislation. These outcomes also meet the recent Law 13.467 of 2017 approved by the National Congress that among other issues changes the Consolidation of Labor Laws (CLT), which derogating various rights of workers and above all possibility greater autonomy than had been decided through collective bargaining to the detriment of what had been legislated. The conclusion of the work indicates to a very worrying situation due to the current political union fragility that could not have force to defend the rights of their representatives with impartiality. Associated to this, we have a carte blanche for the unions to flexibilize the rights also to the prejudice of the workers; it could aggravate still more the precarious situation that several sectors of the work in which this already has been happening. Therefore, there will be a progressive vulnerability of the workers quickly.