A (in) constitucionalidade e convencionalidade do conceito “empregado hipersuficiente”: uma análise frente ao direito fundamental à igualdade.

Abstract

This monograph presents as a central study the analysis of the supposed “hypersufficient employees”, a figure created by the insertion of Articles 444, sole paragraph and 507-A of Consolidated Labor Laws. Such legislative innovation gives greater private autonomy to employees with higher education diploma that earns more than twice the maximum value of the General Social Security Regime, with reservations. The objective of this research, thus, is to study the excess of private autonomy conferred to this new classification of employees, in order to create a diverse segment of employees. In the face of such differentiation, this paperwork questions the conformity between the news dispositions inserted in the labor law and the constitutional values - especially the right to equality and the right to nondiscrimination in the work environment -, the guidelines imposed by international standards - with emphasis on International Labor Organization, Convention No. 111 - and the basic principles of Individual Labor Law. Thus, the present work concluded by the evident flexibilization and deregulation of the Labor Law through Federal Law nº 13.467/2017, being such Labor Law Reform a means to mitigate the principles of social non-retrogression and the principle of worker protection. In this sense, it was also understood that, by introducing articles 444, single paragraph and 507-A in the Labow Law, the legislator adopted criteria not provided for in the Labor Law to differentiate employees, creating a diverse segment. Thus, this monograph chose to use, by analogy, article 611-B of the Labor Law as limiter of articles 444, sole paragraph and 611-A of the Labor Law. In view of such violations, the present study defends, first, the unconstitutionality and unconventionality of articles 444, sole paragraph and 507-A of the Labor Law, as well as the need for interpretative limitation of the autonomy granted to employees, since the creation of the figure of "hyper-sufficient employee” violates the right to equality and the right to non-discrimination at work present in the Federal Constitution of 1988 and in Convention No. 111 of the ILO. Secondly, it was concluded that the principle of the most favorable norm and the principle of social non-retrogression were applied to articles 444, sole paragraph and 507-A of the Labor Law, so that individual negotiation and the choice to use the institute of arbitration will be practiced in order to improve or, at least, maintain the social condition of the worker. Finally, the work also supports the application of objective factors and criteria to verify the validity of individual rights between employees and employer.