LABOR LAW: THE RISKS OF COLLECTIVE BARGAINING TO EMPLOYEE RIGHTS IN THE CONTEXT OF THE PREVALENCE OF NEGOTIATED AGREEMENTS OVER LEGISLATED LAW

Abstract

This research addresses the risks that collective bargaining poses to employee rights in the context of the prevalence of negotiated agreements over legislation, as established by the Labor Reform (Law No. 13.467/2017). This new trend signified a discontinuity with the traditional scheme of Labor Law, where collective bargaining is able to override legislation on issues that were previously non-negotiable. The research seeks to answer the following question: to what extent does the prevalence of negotiated agreements over legislation, instituted by the Labor Reform, represent risks to the protection of fundamental labor rights of employees? The general objective of the research is to analyze to what extent the prevalence of negotiated agreements over legislation, foreseen in the Labor Reform, represents risks to the protection of fundamental employee rights in the Brazilian legal system. As specific objectives, it proposes to study the historical role of collective bargaining in Brazilian Labor Law, highlighting its protective function and its normative development; This study aims to identify the main changes introduced by the Labor Reform (Law No. 13.467/2017) that authorized the prevalence of negotiated agreements over legislation; to assess the risks that collective bargaining, when it prevails over legislation, represents for the fundamental rights of workers; and to investigate clauses in collective agreements and conventions that have resulted in the suppression or reduction of labor rights previously guaranteed by law. The methodology adopted will be a qualitative approach, with a legal-dogmatic bias that results in a legislative, doctrinal, and jurisprudential analysis, as well as the examination of data extracted from collective bargaining agreements and conventions. This study will demonstrate that the prevalence of negotiated agreements over legislation can marginalize guarantees for workers, deteriorate working conditions, allow a reduction in labor rights considered fundamental, and challenge principles such as protection, the most favorable standard, and the most beneficial condition. This study also seeks to demonstrate that the expansion of collective bargaining, in the absence of minimum guarantees and effective legal control, can compromise the social function of labor law, increase existing inequalities, and produce setbacks incompatible with the constitutional principles of human dignity and the value of work.