O direito ao trabalho como elemento do mínimo existencial e a proteção em face do retrocesso social

Abstract

The subject of this paper is the analysis of labor law as an element of the existential minimum, and of how this approach can bring a limitation to social backlash. The objective is to seek this theoretical construction so that it is possible, with the stipulation of the existential minimum, to restrict changes and understandings that may lead to social backlash. Although it is a duty of the State to promote fundamental social rights in times of economic crisis, these are the first rights to be sacrificed, and that’s justified by the “reservation of what is possible” theory and by the fact that are high costs to these rights, given their nature. As for social rights to work, there is flexibilization and deregulation driven by the business class, a class that adheres to the argument in the defense of "less costs and more employment". In this sense, the analysis focuses on the legislative changes on unemployment insurance, sickness insurance, death pension, alteration of outsourcing and the labor reform made between the years 2015 and 2017. The methodology used is logical deduction, with the analysis of the legislations, decisions of the Labor Courts and the confrontation of these information with the minimum existential and reservation of what is possible theories. We conclude that: the fundamental social right to work composes the existential minimum; the changes mentioned violate the principle of the prohibition of social backlash, which protects the arbitrary retrogression of rights and, especially, complies with the existential minimum theory; the rule of the existential minimum cannot be ruled out to the detriment of any other argument; the non-satisfaction of the minimum refers to the misallocation of resources and not to the scarcity of resources; the Labor Courts do not develop, in a technical way, the understanding of the principle that prohibits social backlash, and of the existential minimum theory.