A vedação da ultratividade das normas coletivas pela reforma trabalhista

Abstract

The present study seeks to analyze the prohibition of the ultrativity of the collective norms and their effects before the principle of protection. To this end, the objective is to understand the principle of protection in the Brazilian legal system, the way in which collective norms can materialize this protection and the discussion about the application or not of ultrativity and its effects. After the amendment of TST No. 277, in 2012, being recognized the ultractivity due to compatibility with art. 114, §2º, of the CF, wording given by EC nº 45/2004, the present theme was further intensified. In a preliminary decision by Minister Gilmar Mendes, in ADPF nº 323, in 2016, the STF suspended the effects of the aforementioned statement and, in the following year, the Labor Reform (Law 13.467 / 2017) changed art. 614, §3º, of the CLT and expressly prohibited ultractivity. With the work it was demonstrated that due to these changes and several others made by the Labor Reform, the working class found itself in a delicate situation, seeing their rights being relaxed and suppressed by the simple time lapse of the expired rule, reducing their bargaining power in the face of business class. In this way, the prohibition of the ultra-activity of collective norms violates the principle of worker protection, the basic principle of Labor Law, being the same fundamental for guaranteeing the rights conquered by workers. Thus, it is necessary for the collective rules to be ultra-active, in a relative way, in order to achieve a balance between the parties in collective bargaining, giving applicability to the principle of worker protection, with its prohibition being made by art. 614, §3º, of the CLT, unconstitutional, for offense to art. 114, §2º, of the CF and the principles of worker protection. [resumo fornecido pelo autor]