Análise dos instrumentos coletivos de trabalho anulados no Ceará com ênfase nas cláusulas sociais: avanço ou retrocesso?

Abstract

Collective instruments embody the principle of autonomy of will and freedom of association. Once approved, they become autonomous sources of labor law seeking to meet the specificities of the parties involved in the negotiation, seeking to contribute both to better working conditions and to the development of economic activity. Therefore, collective instruments must be one of the means for social progress and for the dignity of the working class. However, in many negotiations between employers' and labor unions or between unions and companies - parties involved in the process - clauses of collective instruments are made that show social regression in labor relations, meeting the logical-formal and logical-material structure of the objectives, and constitutional foundations of democracy, human dignity and social justice. The Public Ministry of Labor, as guarantor of the constitutional guidelines and democratic principles, has been acting as guardian of the socially conquered rights of the worker, using Annulment Action, acting in the limitation of the negotiating power of the unions to effect the democratic aspirations foreseen in the Constitution Federal. Given this, the objective of this research was to investigate, in the jurisprudence of the Regional Labor Court of the 7th Region, to what extent the clauses of collective instruments, expunged by annulment actions, proposed by the Labor Public Prosecutor, violated the social fundamental rights achieved, using the inductive method and by observation and analysis in the concrete research of the judged. Several judgments of Ceará, mostly, and other courts, were analyzed in the period from 2007 to 2018, citing and commenting on various types of violations of rights won that occurred in the collective instruments negotiated before the 2017 labor reform (Law nº 13.467 / 2017), relating the injured law to the structure of ordering in its principles and valuing aspects. The results indicate that the regression of working conditions occurs, paradoxically, due to the responsibility of the labor union, due to the lack of organization, resistance and distancing of collective interests. It is also warned that such harmful practice tends to aggravate mainly with the advent of labor reform, which introduced several changes in art. 611-A, of the Consolidation of Labor Laws, allowing collective instruments to prevail over the law in some situations, adding, in addition, the insertion of the principle of minimum intervention that tries to restrict the range of possibilities of annulment actions.