Democratic rights and modern State

an analysis of the unrestricted application of Theme 1.046 General Repercussion of the Federal Supreme Court to valid and inapplicable collective norms

Abstract

The purpose of this study is to conduct a critical analysis of the importance of recognizing the validity of collective agreements that limit or waive certain rights, based on the Brazilian Supreme Court's decision on Topic No. 1,046 of General Repercussion. These agreements should, however, be properly adjusted to the particularities of each individual case. In order to approach this objective, we will use the hypothetical-deductive method, primarily analyzing a specific hypothetical formulation to determine whether the Supreme Court’s Topic No. 1,046 should, in every situation, legitimize the unrestricted application of collective labor agreements, even when such application results in undue restriction of labor rights, due to a clear alteration of the factual reality. Such a situation, if realized, could lead to contradictory behavior and be incompatible with the principles of the Democratic Rule of Law and other constitutional principles that protect workers' dignity in the modern state. Given that doctrinal and jurisprudential development on this subject is still ongoing, as it is a relatively new issue, this study does not aim to exhaust the matter. Instead, through jurisprudential research, it seeks to provide greater familiarity and encourage further reflection on a topic that, despite being widely debated today, has not yet been extensively studied.