A prevalência do negociado sobre o legislado e os limites da autonomia coletiva

Abstract

This research analyzes the principle of negotiate over the Law and the limits of collective autonomy under the 13.467/2017 Law. At first, it presents the Brazilian Trade Union Organization and collective labor conflicts, based on the historicity of the trade union system since the emergence in the Industrial Revolution during the conflict between groups until it’s regulation in the Federal Constitution of 1988. The second chapter focuses on the historicity of Labor Law and collective autonomy, as well as the social struggles of the 19th century, where the main idea was only the economic relation. It verifies article 611-B as prohibiting negotiation in respect of the principle of legal reserve and other constitutional norms not contemplated by article 7 of the Federal Constitution, and the gap created by the legislator in the caput of article 611-A, increasing the flexibility of the norm. It studies the cases in which the legislator did not respect the principle of legal reserve, creating divergences and contradictions, about unhealthy conditions and participation in the company's profits and results. Finally, it concludes that the flexibility created by the principle of negotiate over the Law is not complete because of the necessary interpretation of the collective instruments together with the Theory of Dialogue of Sources, and external limitations that regulate the content of the collective instrument on those cases that aren’t protected by article 611-A of the CLT.