Here on the IDP Blog, we've already discussed the paradigm shift that the Brazilian legal system underwent with the promulgation of the 1988 Federal Constitution.

Initially, we identify the Constitution as the apex of the legal system : it is no longer possible to understand the branches of Private Law or even Public Law in a way that is disconnected from the Constitution of the Republic.

Next, we present constitutional hermeneutics as the benchmark for evaluating conflicts or collisions between rights and goods constitutionally protected by the interpreter of the legal norm.

We also included the case study in which the Brazilian Supreme Federal Court equated same-sex civil unions with heterosexual civil unions under Brazilian law. Through this ruling, the Supreme Federal Court broadened the interpretation of Article 226, § 3, of the Federal Constitution , with a view to protecting fundamental rights and respecting the dignity of the human person.

On these three occasions, we addressed a fundamental point: the constitutional perspective governs our legal system.

The situation is no different in labor relations.

Here we will develop some considerations about Labor Law, labor relations, and constitutional hermeneutics, also known as Constitutional Labor Law.

What are the principles we should know? What are their dimensions?

Come on!

Labor relations highlighted in the Constitution: understanding Constitutional Law and Labor Law

Constitutional Labor Law in the Brazilian legal system refers to the principles and rights related to work as stipulated in the 1988 Federal Constitution.

It fits within the broader context of social and economic rights, and is one of the foundations for guaranteeing the dignity, equality, and well-being of citizens.

There, the legal basis is established for workers to have access to decent employment, fair working conditions, and the necessary protection to guarantee their financial security and well-being.

As IDP professor Ingo Wolfgang Sarlet said: 

"The right to work is not just one among many fundamental rights enshrined in the 1988 Federal Constitution, but, in addition – in synergy and on an equal footing with the dignity of the human person – it represents a fundamental value and principle of the Brazilian legal and constitutional order."

Article 1 of the Constitution of the Republic , in establishing Brazil as a Democratic State of Law, set forth the following fundamental principles:

• sovereignty;
• citizenship;
• the dignity of the human person;
• the social values ​​of work and free enterprise; and
• Political pluralism.

However, these values ​​were not included in the text "for free." In fact, they are the result of intense struggles and discussions during the National Constituent Assembly established in 1985.

According to Nicolle Gonçalves , a specialist in Labor Law and Procedure at IDP, the constitutional text has no practical application if it is emptied of its popular context and historical context – even more so considering the 1988 Constitution, which was the result of broad popular mobilization.

She adds: "The point here is to think of the Constitution as a set of applied principles, but one that is reinterpreted throughout history to provide practical answers to the people's questions, which is where it finds its meaning."

In reconstructing certain aspects of the National Constituent Assembly in his master's thesis, Gonçalves concludes that the leading role, in terms of the collective organization of workers, belongs to the trade union. 

In that climate of self-reflection during the Constituent Assembly, the unions were immersed in the role of defending the collective or individual rights and interests of workers. 

Its role was even foreseen in Article 8, III, of the Constitution that was being drafted: "the union is responsible for defending the collective or individual rights and interests of the category, including in judicial or administrative matters."

The debates held in the Committees and Subcommittees resulted in several labor achievements foreseen in the Constitution.

Among these, the Constitution guarantees equal opportunities . In this sense, everyone has the right to employment opportunities without any form of discrimination, whether based on gender, race, religion, or other factors.

The Constitution also prohibits any form of discrimination in the workplace , including wage discrimination, gender discrimination, age discrimination, and equal opportunity discrimination.

Workers, both men and women, also have constitutional protection , with guaranteed rights such as a minimum wage, reasonable working hours, paid vacations, and maternity leave.

Freedom of association is also guaranteed , meaning the right of workers to join unions to protect their interests and negotiate better working conditions.

The right of workers to strike as a way to demand better working conditions and wages is constitutionally recognized.

The constitutional right to work also includes the guarantee of social and welfare protection , such as retirement, unemployment insurance, and benefits in cases of workplace accidents.

Regarding social rights: what do articles 7 to 11 of the Federal Constitution say?

Most constitutional labor rights are found between articles 7 and 11 of the Constitution of the Republic.

According to the systematization carried out by the Superior Labor Court – TST , we can list the following:

• Protected employment;
• Unemployment insurance;
• Severance Indemnity Fund – FGTS;
• Minimum wage;
• Minimum wage;
• Irreducibility of salary;
• Salary not lower than the minimum wage for variable compensation;
• Thirteenth salary;
• Pay for night work is higher than for day work;
• Wage protection;
• Participation in the company's profits;
• Family salary;
• 8-hour workday;
• 6-hour workday for work performed in uninterrupted shifts;
• Paid weekly rest;
• Overtime pay;
• Prohibition of discrimination;
• Prohibition of night work, dangerous and unhealthy work for minors under 18 years of age, and any work for minors under 16 years of age, except under the condition of apprenticeship from the age of 14;
• Paid annual leave;
• Maternity leave;
• Paternity leave;
• Protection of the women's labor market;
• Early warning;
• Reducing the risks inherent in the work;
• Additional compensation for arduous, unhealthy, or dangerous activities;
• Retirement;
• Assistance to sons and daughters in preschool daycare centers up to 5 years of age;
• Recognition of collective bargaining agreements and conventions;
• Protection against automation;
• Action limited to 2 years after the termination of the employment contract (two-year statute of limitations);
• Workers' compensation insurance;
• Equal rights between permanent and temporary workers (both male and female);
• Prohibition of discrimination between professionals;
• Prohibition of discrimination based on sex, age, or marital status;
• Freedom of professional or trade union association;
• Mandatory participation of trade unions in collective labor negotiations;
• Right to strike;
• Participation of workers and employers in the governing bodies of public agencies where their professional or social security interests are the subject of discussion and decision-making; and
• The election of a representative in companies with more than 22 employees.

Conclusion

Labor relations, analyzed from a constitutional perspective, represent one of the fundamental pillars of a just and equitable society.

The Constitution recognizes work as a social value and a fundamental right, consolidating the notion that it must be carried out under conditions that ensure not only subsistence for the worker, but also their personal and professional fulfillment.

In this sense, the dignity of the human person is central, both for workers and for employers, who must observe principles such as non-discrimination, fair remuneration, and safety in the workplace.

The Constitution also prohibits discrimination in the workplace, whether based on gender, race, age, sexual orientation, or other personal characteristics.

This aims to create an inclusive and diverse environment where everyone can contribute to the progress and prosperity of society.

From a constitutional perspective, labor relations transcend the simple exchange of services for remuneration. They are an expression of society's deepest values ​​and rights.

They ensure a balance between the power of the employer and the protection of the worker, promoting an environment in which both can coexist harmoniously and contribute to the economic and social development of the country.

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References

GONÇALVES, Nicolle Wagner da Silva. The 1988 Federal Constitution and the collective organization of delivery workers mediated by apps in Belo Horizonte/MG: between the past and the present of a permanent struggle for rights. 2022. 195 p. Dissertation (Master's in Law) – School of Law, Tourism and Museology, Federal University of Ouro Preto, Ouro Preto, 2022.

SARLET, Ingo Wolfgang; MELLO FILHO, Luiz Philippe Vieira de; FRAZÃO, Ana de Oliveira (Eds.). Dialogues between labor law and law . São Paulo: Saraiva, 2014.