Negociação coletiva, transnacionalização e procedimentalidade

Abstract

This essay, concentrated on the area of Legal Thought and Social Relations and in the research line of Labor and Social Security law, presents a general theory of collective bargaining, as a structured and mediated process of normative self-production and selfcomposition of collective labor conflicts, as well as of collective agreement as its instrument, with an emphasis on collective private autonomy and its limits. It points out the technological revolution and the new morphology of labor as causes of the trade union representation crisis, proposing a direct bargaining, by company, both internally (subsidiary to trade union), as well as externally, due to the difficulties of international unionization. It theorizes the principles of bargaining and maintains that it is instituted, as a system of processes, at two distinct levels: one, by the regulatory establishment and institution of obligations: the bargaining process; the other, by the effects arising from its object (convention or agreement), which establish various legal obligations, which are also designed as a cooperative order . Next, it deals with the typology of the lato sensu collective agreement, its nature and clauses classifications, emphasizing its prevalent content: The norms, to establish criteria of review of their legality, either in the context of the bargaining process itself, through the techniques of mediation and comparison of collective bargaining agreements ( conglobamento ), or after the same, the effective content of their object, from the minimum judicial intervention in autonomy of willing subjects, provided that a minimum core of worker s rights is respected. As the base of the study, it addresses the phenomenological aspect of the internationalization of legislation methods guided by technology, global framework agreements, the transnational dimension of collective bargaining as a source of labor law, framing it in the context of Mercosur and its reception in the Brazilian legal system. From there, it adopts a comparative approach between, on the one hand, the illegitimacy of state sources of legislation and heterocomposition: and, on the other, the legitimacy of normative self-production and selfcomposition, to propose collective bargaining as a viable instrument of mediated, discursive, rational, dialectical, dialogical, circular and horizontalized procedure as an expression of validity in the creation of the right to work in participatory democracy, elevated to selfregulation of solution of the collective conflicts from the structural coupling between the dignity of the individual worker and the corporate interests.