The relationship between fact and validity of the collective norm in a context of crisis generated by the Labor Reform in Brazil

Abstract

Introduction: The article addresses the impact of Law 13,467/2017 on extrajudicial methods of conflict resolution (especially collective bargaining) and its impact on the labor movement. Based on the perspective of access to justice in neoliberal societies, the analysis also uses Habermasian discursive theory to assess whether the collective norm produced since then preserves legitimate congruence between validity and factuality.

Objective: The main objective is to verify the new outline of collective bargaining achieved by the Labor Reform. The specific objectives are: (i) to point out changes in access to justice with an emphasis on the diversification of its mechanisms; (ii) to correlate Habermasian discursive theory as a basis for the formation of free consensus and its pitfalls in the face of unequal bargaining and negotiation arenas; (iii) to problematize private collective autonomy in a context of crisis.

Methodology: A bibliographic and documentary survey is used to enable, with a qualitative approach, a critical analysis of the first results presented by the Mediation System (MTE) in connection with data from PNAD/2023 and recent decisions of the STF that directly impact the capacity of the union to act as a subject of the communicative process that culminates in collective bargaining.

Results: Since the 2017 reform, there has been a reduction in the number of union members and collective standards produced can be observed, which raises questions about the autonomous normative sources of Labor Law. Flexibilization, in seeking to grant greater negotiating autonomy to workers, cannot do without unions, which are mitigated in their organizational and representative power.

Conclusion: Although the labor reform is justified by the reinforcement of collective bargaining, by creating mechanisms that generate financial crises and union representation, it has created an environment that is unfavorable to fair negotiation. In this scenario, as a consequence, there has been a decline in collective agreements and conventions.

KEYWORDS: Collective bargaining; discourse theory; financial and representation crisis; labor reform; unions.