Author's Biography

 José Cairo Júnior is a labor judge in Brazil and professor of Labor Law at the State University of Santa Cruz, in the state of Bahia. He holds a master's degree in Law from the Federal University of Pernambuco and from the Universidad Castilla-la Mancha in Spain, and is currently pursuing a doctorate in Law at the Federal University of Santa Catarina.

CHAPTER I - INTRODUCTION TO LABOR LAW IN BRAZIL

The specialization of Law that is necessary to establish rules concerning social relations, especially those in which a person provides services for the benefit of another and under their dependence, in exchange for compensation, is called Labor Law. Thus, the factual substrate of this branch of Law is the subordinated work relationship, and more precisely, work itself. It is therefore necessary to identify and describe its characteristics.

The term work expresses an idea of suffering, as it derives from the Latin word tripalium, an instrument consisting of a tripod formed by three stakes driven into the ground, used to torture slaves in primitive societies. Thus, to work (tripaliare) meant to torture someone with the tripalium.

The Bible itself makes a connection between work and punishment, as can be seen from the reading of the passage that speaks of the expulsion of Adam from paradise: "In the sweat of thy face shalt thou eat bread, till thou return unto the ground; for out of it wast thou taken: for dust thou art, and unto dust shalt thou return. Genesis 3:19."

Etymologically, work constitutes human action through which the energy of a person is directed towards a certain goal.

The term work can also be understood as the application of activity, service, effort, fatigue, action or result of the action of an effort.

Historically, however, the concept of work is intimately related to the use of the worker's strength with the objective of receiving compensation, to provide for their own maintenance and that of their family. When personal energy is used without this purpose, there will simply be human activity and not human work.

It is concluded, therefore, that all human work represents human activity, but not all human activity can be considered as work, such as sports, recreational activities, etc.

1.1. CONCEPT OF LABOR LAW

Labor Law is the branch of Law composed of rules and principles, systematically ordered, that regulate the subordinated work relationship between employee and employer, accompanied by sanctions for the case of noncompliance with their commands.

Labor Law, as a rule of conduct observed from its objective aspect, has as its main goal the prevention of conflicts arising from the confrontation between capital and labor, in order to preserve life in society and the consequent social peace.

In fact, viewed under the classical theory that gave rise to Labor Law, this branch is concerned solely with the subordinated employment relationship. Thus, other work relationships, such as the provision of freelance services (mainly carried out by professionals such as lawyers, doctors, dentists, engineers, among others), relationships derived from contracts for work or agricultural partnerships, etc., are beyond its scope.

Therefore, it is of great importance to delimit the concepts of employee and employer, as classical Labor Law is limited to setting rules of conduct for these social actors.

Currently, there is a growing movement to expand the scope of Labor Law to cover other work relationships, i.e., those relationships involving some types of non-subordinate workers. This is because, with each passing day, the number of workers classified as employees is decreasing, due to the phenomenon of globalization and, consequently, the flexibilization of labor laws.

In Italy, for example, a significant portion of labor legislation applies to workers defined as "parasubordinated," a category represented by those who provide services in favor of another, without the high degree of legal subordination that characterizes the traditional employment relationship, but not entirely independent.

The first step in expanding the aforementioned scope of Labor Law has already been taken in Brazil, in the field of jurisdictional competence.

Through Constitutional Amendment No. 45/2004, which amended the wording of article 114 of the Brazilian Constitution, the jurisdiction of the Brazilian Labor Court was expanded to process and judge any and all disputes involving the work relationship, not just those arising from the employment relationship.

1.2. DENOMINATION

The expression "Labor Law" is the most commonly used and consecrated by the legislation, doctrine, and jurisprudence of several countries to designate this branch of legal science. In Germany, the term Arbeitsrecht is used; Diritto Del Lavoro in Italy; Derecho del Trabajo in Spain, and Droit du Travail in France. But other designations are also used, such as Social Law, Worker Law, Industrial Law, Corporate Law, and Labor Law.

Cesarino Júnior defends the use of the designation Social Law, among other reasons, because "the term 'social,' due to its breadth, encompasses all aspects of protection for the worker and their dependents." The author also takes into consideration the fact that "the new law is universally recognized to have the purpose of solving the 'social question,' and therefore its laws have always been called 'social laws.'"

The designation Social Law is criticized, considering that ultimately, all Law would be social. Thus, it would not be possible to use this expression to designate a single branch of Law. The term Social Law can also be used to refer to two specific branches of Law, namely, Labor Law itself and the Law of assistance and social security.

The expressions Worker Law and Industrial Law overly restrict the scope of application of this branch of Law since they refer to a kind of economic or professional activity carried out, respectively, by the employee and the employer.

Finally, the designation Corporate Law suggests the idea that this branch of Law would regulate the relations within the guilds that, in a distant era, were linked to the State.

Arnaldo Süssekind shows a clear preference for the designation "Labor Law," highlighting its use by several internationally renowned authors, including the International Labor Organization (ILO) and several Constitutions.

1.3. CHARACTERISTICS

In addition to the characteristics common to other branches of legal science, Labor Law has peculiar traits that stand out.

Thus, it can be said that Labor Law is characterized by excessive protection of the employee, who is considered as a vulnerable party, in order to achieve its primary objectives, which are to obtain better working conditions and social peace, whether through state legislative means or through individual and collective labor negotiations.

Labor Law grants unequal treatment between representatives of capital and labor. The worker is considered a weak element in the employment relationship, and the employer is considered to be hyper-sufficient. To compensate for this factual vulnerability, labor law grants the employee several prerogatives (legal plane), including limitations on the waiver of their rights.

It can be concluded that the vulnerability of the employee upon which labor law protection is based is legal, since it arises from the conclusion of an employment contract regulated by law.

It should be noted that Law No. 13,467/17, called the Labor Reform Law, legally recognized the figure of the hyper-sufficient worker (art. 444, sole paragraph, of the CLT), that is, one who, due to their level of salary (economic hyper-sufficiency) and technical-scientific knowledge (technical hyper-sufficiency), does not require the same level of protection afforded to vulnerable workers (legal vulnerability).

1.4. DIVISION

Labor law is divided into two main groups: individual labor law and collective labor law. There are authors who further break down labor law into international labor law, labor administrative law, labor criminal law, and social security law.

A. Individual labor law

In general, law regulates interpersonal relationships. For the sake of division and systematization, each of its branches deals with a certain type of interpersonal relationship.

There is a specific relationship established between the service provider and another person who directs, employs, and benefits from the results of the worker's labor. 

This relationship is characterized by the state of legal subordination to which the worker is subjected due to the conclusion of an employment contract. 

The employee transfers the results of their physical and mental efforts to the employer. This relationship is regulated by individual labor law.

Therefore, individual labor law is the branch of private law consisting of the set of rules and principles that regulate the relationship between the employee and the individual employer, as well as containing sanctions for non-compliance with its determinations.

B. Collective labor law

In addition to the individual relationships that take place between workers and employers, there are collective labor relations, which are called so because the collective entity (usually the union) represents the interests of a particular group of people, namely, employees and employers, considered collectively rather than individually.

Collective labor law is, therefore, the branch of private law that establishes rules and principles aimed at regulating the activity of collective entities representing employees (professional category union) and employers (economic category union), with the aim of avoiding the emergence of conflicts and outlining guidelines for the establishment of professional standards by the parties concerned.

According to Cesarino Junior, collective labor law consists of "social laws that consider employees and employers collectively gathered, mainly in the form of union entities".

1.5. LEGAL NATURE

The issue of the legal nature of Labor Law still provokes heated debates today. It should be noted that the very dichotomy of Law, public and private, is already a source of heated discussions after the definition presented by Ulpiano, according to which publicum ius est quod ad statum rei romanae spectato, privatum quod ad singulorum utilitatem.

By legal nature of Labor Law, we mean its placement in one of the aforementioned groups. It is important to note, however, that the legal nature of a particular branch of Law varies according to the time and political power organization adopted by each State.

Although Labor Law is mostly made up of rules of public interest, such a characteristic does not imply the recognition of the public nature of the said branch of Law.

The thesis of recognizing the public nature of Labor Law does not withstand a deeper analysis. Family Law, for example, despite being guided by various rules of public order, has never lost its character as Private Law.

Amauri Mascaro attributes the division of Law into public and private to a merely ideological criterion and asserts that Labor Law belongs to the latter:

"If we admit the methodological validity of the distinction between public and private law, Labor Law would be a branch of Private Law, because it does not bind citizens to the State; it regulates the immediate interests of individuals; it is pluricentric, emanating from international, state and non-state sources; both collective labor agreements and individual labor contracts have not detached themselves from the scope of Private Law."

In fact, the division of Law into public and private varies according to the jurist's point of view. For some, Public Law is the one that deals with the relationship between individuals and the State invested with the ius imperii. For others, Public Law is formed by rules of public order.

By adhering to the first theory, it is necessary to conclude that Labor Law is a branch of Private Law, since it deals with the relationship between individuals, namely, the relationship between the employee and the employer.

This is the dominant doctrinal current, defended by Maurício Godinho Delgado, Gustavo Filipe Barbosa Garcia, Vólia Bomfim, Sérgio Pinto, Luciano Martinez, Amauri Mascaro, among others:

"Despite its private nature, it is a Law regulated by minimum legal clauses, which does not detract from its private nature. Well, some other branches of Law also have minimum clauses stipulated by Law, demonstrating a state-directedness, an intervention of the State in private and particular relations: consumer Law, family Law, medical plans, insurance, etc."

It should be noted that there are still other currents that reject the traditional classification of Law, including Labor Law in a third category: social Law, mixed Law or unitary Law.

Finally, it should be noted that labor legislation consists of provisions that establish administrative sanctions. Therefore, when an employer fails to comply with a certain command of labor law and the inspection agency detects this omission, it can impose a fine that does not revert to the benefit of the worker, but to the state's coffers. Viewed in this light, labor law can also be classified as a branch of public law.