O reconhecimento da obrigatoriedade de negociação coletiva para a realização de dispensa coletiva diante da antinomia jurídica e violação ao princípio da proibição de retrocesso social do artigo 477-A da CLT

Abstract

The collective dispensation does not only affect the dismissed employees, as it affects their families, professional and economic union entities, the municipality and the state. Aside from this, it indicates that the employer has an economic, structural, technological or structural problem, because no one wants to see their enterprise closing branches, extinguishing departments or even dismissing people collectively. The Labor Reform was an opportunity that the legislator had to regulate the collective dispensation and to correct the omission that has occurred since the 1988 Constitution with the theme. However, it made the path to be followed by the subjects of the labor contract even more difficult, by equipping it with the individual and pluri-stic dispensations, and treating it as if it were a potential power of the employer, ignoring that it is a collective right lato sensu, in which collective bargaining is essential for its realization. Since the 1988 Constitution, doctrine and jurisprudence have played an important role so that the omission of the legislator does not harm even more those involved with collective dispensation, including using comparative law. Thus, prior to the Labor Reform, a collective dispensation not preceded by collective bargaining was invalid. Article 477-A of the CLT is a case of legal antinomy, contrary to Article 611-A, Caput, and Paragraph 3 of the CLT. Article 611 brought with it the motto of the Labor Reform, "the negotiated one prevails over the legislated", leaving out of the list of what could be object of collective agreement or collective dispensation, ignoring that jurisprudence and doctrine understood that collective bargaining was indispensable for its occurrence. That is, while the legislator was silent on it, doctrine and jurisprudence were in charge of studying it. The legislator must be attentive to the sources of law when elaborating the legal norms but is to incur in social retrogression. The doctoral thesis arose from the nonconformity with these questions and from the concern of how to move away from the application of the article 477-A of the CLT and to create a procedure of instrumentalization of the collective conflict raised with the collective exemption. In the meantime, it is understood that collective dispensation must be submitted to the means of collective conflict resolution, with special attention to the most modern methods of collective bargaining, which must be brought into collective conflict of collective dispensation. In case there is no success in collective bargaining that the conflict is submitted to jurisdiction, again entrusting the Judiciary to address the issue that the legislature insists on ignoring.