Negociado sobre o legislado e o dilema da flexibilização versus a proteção trabalhista, de acordo com a Lei nº 13.467/2017.

Abstract

The labor reform, which took place through Law nº 13.467/2017, inserted two roles in the legislation that when interpreted together indicate the new limits of collective negotiation, giving possibility to normative flexibility, namely due to the provisions of the articles 611-A and 611-B of the Consolidation of Labor Laws. With the insertion of those provisions, cases in which the negotiated prevails over the legislation (611-A) were introduced, which is when a right of relative unavailability is negotiated, and cases in which collective negotiation is not allowed (611-B), since the latter are considered absolute unavailability rights. Part of the doctrine and the specialized jurisprudence are displeased with the mentioned changes, considering that the new legislation allows collective negotiation to result in a normative instrument that removes rights already granted and guaranteed to the employee by the heteronomous state legislation, harming the employee’s rights. On the other hand, the Supreme Court disagrees with this position, considering that it ratifies the text added by the labor reform, honoring collective private autonomy, and, therefore, the flexibilization of labor legislation. Thus, the Supreme Court had to recognize the supremacy of the negotiated over the legislated, even if it harms the employee’s rights. In this sense, the protective principle, the greatest aegis of labor law, especially in its aspect of applying the most favorable rule, is mitigated, for in the face of collective labor law it is applied only relatively. In addition, the reform clearly inserted provisions with the intention of giving different treatments to the segments of individual labor law and collective labor law, since in the first one there are still signs of the prestige of the protective principle, while in the second it is derogated by collective private autonomy.