Constitutionality control about working matters in Brazil between 1988 and 2012
| Autor | Sayonara Grillo Leonardo Coutinho da Silva - Eleonora Kira Valdez de Moura |
| Ocupação do Autor | PhD and MS in Legal Sciences from the Pontifical Catholic University of Rio de Janeiro (Pontifícia Universidade Católica do Rio de Janeiro, PUC-Rio) - LL.M from Universidade Federal do Rio de Janeiro |
| Páginas | 1356-1379 |
1356 • XXVI World Congress of Philosophy of Law and Social Philosophy
Constitutionality control about working
matters in Brazil between 1988 and 2012
Sayonara Grillo Leonardo Coutinho da Silva1
Eleonora Kira Valdez de Moura2
Abstract: The Federal Constitution of 1988 inaugurated a new social order in
Brazil, since it has brought a catalogue of fundamental labour rights and also
provided remedies, guarantees and mechanisms that could enable not only the
promotion and realization of these rights, as well as standardize the legal frame-
work to the new constitutional order. The Direct Actions of Unconstitutional-
ityADI presentedto SupremoTribunal FederalSTF appearas oneof the
instruments available for the Brazilian society able to guarantee the unity of
the new constitutional system. In the context of investigations undertaken by
theresearchgroupInstitutionalSeingsandLaborRelationsCIRTatLaw
School of the Universidade Federal do Rio de Janeiro, it emerged as relevant
maers the actions presented to Supremo Tribunal Federal in the control of
labor reforms carried out in violation of the fundamental rights of workers pro-
tected by the 1988 Constitution. Since the lack of information about the utiliza-
tionofDirectActionsofUnconstitutionalityinlabourmaerswasdetecteda
database was built in order to support the Group’s researches. In this article it
1
PhD and MS in Legal Sciences from the Pontical Catholic University of Rio de Janeiro
(Pontifícia Universidade Católica do Rio de Janeiro - PUC-Rio). Associate Professor at
the National Law School (Faculdade Nacional de Direito - FND), where she is part of the
Postgraduate Program in Legal Sciences at the Federal University of Rio de Janeiro (Uni-
versidade Federal do Rio de Janeiro - UFRJ) and working on a line of research involving
“Decision eories and Institutional Designs”. Leader of the Institutional Settings and
Labor Relations Research Group (Congurações Institucionais e Relações de Trabalho;
CIRT) – part of the Directory of Research Groups at the National Council for Scientic
and Technological Development (Conselho Nacional de Desenvolvimento Cientíco e
Tecnológico – CNPq).
2
LL.M from Universidade Federal do Rio de Janeiro. Bachelor of Statistics (Institute
of Mathematics and Statistics at the State University of Rio de Janeiro - Instituto de
Matemática e Estatística da Universidade do Estado do Rio de Janeiro - IME-UERJ) and
Legal and Social Sciences (FND-UFRJ). Researcher linked to the Institutional Congu-
rations and Labor Relations Research Group (CIRT). Judicial Technician at the Rio de
Janeiro Court of Justice (Tribunal de Justiça do Rio de Janeiro - TJ-RJ).
Special Workshop: Democracy, Social Justice and Labor • 1357
is presented the construction process of this database and preliminary analysis
of its information.
Keywords: Institutions; Judicialization; Labour; STF.
1. Introduction
In Brazil, the constitution of labor – consisting of a decent job that
establishes the conditions for a life of dignity and of the exercise of a
more autonomous existence – passes through the activity of multiple
institutions, including political, union and judicial institutions, to shape
the meaning of labor in the Constitution. In the judiciary, the interpreta-
tion of the Brazilian Supreme Court (Supremo Tribunal Federal - STF)
regarding the rules, norms and principles of social justice, the subor-
dination of the economic order to a social purpose and valorization of
labor have gained increasing importance in labor world. Constitution-
al jurisdiction itself has been transformed and, with it, the institutional
architecture that is geared toward the adjudication of labor disputes.
The Supreme Court’s role has been enlarged with respect to interpret-
ing topics previously reserved primarily for the Labor judiciary and its
Superior Labor Court (Tribunal Superior do Trabalho - TST), which is
the court tasked with standardizing labor interpretation with the Con-
stitution.3
These transformations are processed in a) the reframing of labor
norms through the activity of interpreters; b) the institutional design of
the Brazilian judiciary and conforming institutional spaces that autho-
rize and allow the judge’s interpretation of the text; and c) the role of
thejudiciaryincontrollinglegislativereformsthataectlaborlawand
undermine the assumptions of labor law theory. To understand these
transformations, we developed investigative practices that focus on in-
stitutional arrangements and argumentative and judicial practices with
3
Because there is a clear division of responsibilities in most areas of law, the Superior
Court of Justice does not judge appeals based on constitutional claims. ose extraor-
dinary appeals that challenge Regional Court decisions are directly addressed to STF,
whether they originate in Federal Regional Courts or State Courts of Justice. However,
all appeals of review led against rulings by the Regional Labor Courts are directed to
the Superior Labor Court – even if they have Constitutional foundation – which is in ac-
cordance with the rule expressly provided in Article 896th , paragraph c of the Brazilian
Labor Code (Consolidação das Leis do Trabalho;CLT).
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