A prevalência do pactuado sobre o legislado: análise da (in)constitucionalidade do art. 611-A da CLT

Abstract

The present paper aims to analyze the (un)constitutionality of Article 611-A of the Consolidation of Labor Laws (CLT), introduced by Law No. 13.467/2017, which establishes the prevalence of collective bargaining over statutory law in various labor matters. It aims to examine how this legislative change affects constitutional principles, the hierarchy of norms, and the fundamental rights of Brazilian workers. To this end, it begins with a historical overview of the emergence of Labor Law, from its origins in workers' struggles against labor exploitation to its consolidation in Brazilian law, including the creation of the CLT and its development until the 1988 Federal Constitution, which granted constitutional status to labor rights. The general objective of this research is to analyze whether Article 611-A of the CLT aligns with the Federal Constitution, international treaties ratified by Brazil, and the protection of social rights. The methodology is qualitative, exploratory in nature, based on bibliographical and documentary research, and supported by the hermeneutic-argumentative method. The study concludes that, although valuing collective bargaining is relevant, Article 611-A, by allowing the negotiated to prevail over the legislated in sensitive matters, may violate fundamental principles such as the dignity of the human person, the social value of work, and the social function of contracts. This represents a social and legal setback that jeopardizes the minimum civilizational standards guaranteed to workers.