A ética como instrumento na prática da negociação coletiva

Abstract

This paper aims at analyzing the application of ethical principles to collective labor negotiations within the scope of Brazilian Law. This study is sustained by the relevance of collective labor negotiations taking place in Brazilian Law, especially as a method of self-settlement , where loyalty and transparency are the picture of the true exercise of negotiation practice, under pain of causing its instrumentality to be faulty. We believe this is an extremely important matter, particularly in view of Brazil s current social-political situation; and considering that Labor Law is a branch of the law that studies social relationships, we, as legal practitioners, are expected to identify the problems and take them to society, in order to demonstrate the relevance of ethics amongst labor collective negotiations. We perceive a current tendency towards the breaching of the ethical-social paradigms, and to the creating of new rules labeled ethics , whose concepts, in fact, are substantially devoid of ethics. Therefore, a risk of a crisis involving the Federal Constitution arises. Thus, social partners must visualize the presence of ethics in a given negotiation, because the very dignity of human being imposes one party to respect the other, and therefore, one should fight against the fading away of ethical principles, which should be increasingly valued. Therefore, and considering that ethics is a legal, universal, mandatory and self-applicable principle, it must be applied, more specifically, to the collective negotiation. And more: it must be enforced by the Judiciary under the penalties provided for by the Brazilian legal system. We will see that, in the event there is no better solution to the dispute, the nullity of the instrument must be declared, since it lacks the legality needed pursuant to the ethical principle, provided for by the Brazilian legal system. This is where the consequences of the faulty juridical act result from, and thus we are to apply the ethical autonomous principle, even though we do it through the applicable procedural remedies, and thus sustaining, once again, the matter of this present study. The subject approached in this paper focuses first the study of ethics within the legal system, and only afterwards we analyze the principles applicable to collective negotiation in view of the systems theory, therefore giving grounds to the adoption of the ethical principle to the collective labor law. We will also make use of contemporary sociological studies, in order to sustain the feasibility of inserting a general principle into the collective labor law, and, through the current legal theory and case law, we will examine the subsidiary adoption of civil law in order to apply the consequences brought up by the act that is a nullity, since exercised without ethical principles. The theory of legal argumentation shall analyze the legal system as an open set of norms and principles that, after information is processed through catalysis, will permit the absorption of ethics as a mandatory rule of conduct. Thus, within the open system where collective labor law is inserted, we will study the absorption of substantive civil laws and the Federal Constitution itself, so as to sustain the nullity of the faulty act, and the consequences of acting in bad faith when claiming a settlement devoid of ethics