O princípio da autonomia coletiva como princípio material: análise do exercício da autonomia após as mudanças da Lei 13.467/2017

Abstract

This work aims to analyze state control regarding the exercise of collective autonomy. The topic is addressed from Law 13,467 / 17, called Labor Reform in which there were several legal changes, among which was the prevalence of the negotiated over the legislated. The production of effects for fundamental rights in private relations is still a very discussed point in the theory of principles, mainly regarding fundamental social rights. As much as the thought that fundamental rights should be applied to private relations is consolidated, there is little systematized thinking about how the effects occur, especially at the moment of the Judiciary's control in relation to the exercise of the private autonomy of individuals with rights. rights. The so-called adequate model, elaborated by Virgílio Afonso da Silva, addresses this theme, attributing the nature of a formal principle to private autonomy. Daniel Sarmento's proposal on the application of fundamental rights in private relations is also analyzed. Regarding the structure of formal principles, Martin Borowski's thought was addressed. To understand and situate the issue, it is necessary to understand in depth the concept of subjective right, complete fundamental right, the types of discretion and the refined complete weight formula., In the thought of Robert Alexy, the theoretical framework of this research and two of the three investigated authors. In addition to the systematization of concepts and bibliographic review, jurisprudential analysis is used in order to understand the behavior of the Brazilian Superior Labor Court regarding the control of collective instruments and their eventual change of posture after the new legislation.