O princípio da vedação do retrocesso no direito do trabalho: conceito, fundamentos e parâmetros de aplicação

Abstract

The purpose of this study is to analyze how the principle of non-regression should be used in the analysis of the constitutionality of regressive measures in matters of social rights and, more specifically, Labor Law. In the first chapter we will present the relationship between work and human dignity, which, although inherent, often does not occur in practice. This circumstance explains the importance of labor law, which should guarantee a level of dignity for the work and the worker. This first section explains why regressive measures relating to labor rights require a careful constitutional analysis. In the second chapter, we will present some topics on social rights, such as its form of realization, its characterization as subjective rights and consequent adjudication before the Judiciary. The analysis will focus in the relevant subjects to the work. Besides, we are going to verify the justification of formal and material fundamentality of social rights. In the third chapter, we will present the principle of non-regression: its concept and international and constitutional origin. The main objective of this chapter is to present a theory both compatible with the democratic principle and efficiently protective of social rights. In the last chapter, we will defend the use of the principle of non-regression in the analysis of the legitimacy of regressive measures established through collective bargaining. The imbalance of forces between employee and employer, although attenuated in the collective relationship, does not disappear and, therefore, these negotiations are subject to procedural and substantive limits