A reforma trabalhista e o princípio da proteção: uma análise à luz do direito à igualdade e à não discriminação

Abstract

The research theme is based on the analysis of “labor reform” in brazil in the light of the right to equality and non-discrimination, in order to verify whether there are changes in the legal text (both changes that equate employees and employers, as well as changes that establish differentiated treatment of the parties) that represent discrimination to the detriment of workers. For this, formal equality and material equality are initially conceptualized, as well as the need to establish legitimate differentiated treatments for vulnerable groups is put in evidence. The perspectives of anti-differentiation and anti-subordination are addressed, in order to better clarify issues inherent in the right to anti-discrimination. The normative provisions regarding equal opportunities and the prohibition of discrimination under international human rights law and in the brazilian federal constitution are also made explicit. Still in the first part of the research, the history (the conquest of rights that occurred until the federal constitution of 1988) and the importance of labor law are demonstrated. The existing labor protections under international law, compatible with constitutional rules, are listed below. At the end of the first chapter, based on the findings made, the existing relationship between labor law, guided by the principle of protection, and the right to anti-discrimination is evidenced, insofar as this aspect of the law aims precisely to establish differentiated treatments for parties uneven. In a second step, the study on labor reform (which corresponds to the set of legislative changes that occurred since 2017 in brazil) is carried out. Initially, it refers to the breakdown of labor rights that occurred from the end of the 1980s until the 2017 labor reform. The discourse used to justify labor reform is also made explicit (in the sense that the economic crisis was caused by excess rights labor). Afterwards, the main changes arising from law no. 13,467, of 2017, are addressed, namely: the negotiated over the legislature; the possibility of annual discharge; intermittent work; the changes that influence the functioning of unions and the right to strike; regulation of off-balance sheet damage; the figure of the hypersufficient worker; the changes related to the gratuitousness of justice; and, finally, the changes that concern women's work. Other legislative changes (which are part of the brazilian labor law “reform” project) are also analyzed: law no. 13,429, of 2017, regarding outsourcing, as well as other measures that made labor rights more flexible as of 2017 (such as the measure provisional “economic freedom”, among others). The present doctoral thesis shows that, by suppressing several rights foreseen in the labor regulations, which guaranteed employees a series of protections in the employment relationship, labor reform violates the logic of the protective principle and, consequently, violates the right to equality and equality. Non-discrimination, that is, it violates the civil and political rights that concern equality, provided for under international human rights law. The research is bibliographic and documentary and uses national and foreign bibliography, as well as readings and research in books, magazine articles, material collected on official websites and national and international legislation.