Concretização do direito constitucional do trabalho: uma tentativa de adequação do trabalho atípico às preferências da ordem jurídica brasileira

Abstract

This research analyzed the metamorphosis of work in the 21st century and the emergence of atypical forms of labor, arising from technological development, in a context of mass consumption and surveillance, structural unemployment and flexibilization of labor law. Given the centrality that work assumes in the Constitution of 1988, by founding the legal, economic and social orders, in addition to constituting autonomous fundamental right, the reality of platform workers proved to be incompatible with several constitutional norms, classified as of full effectiveness and immediate applicability, highlighting the need to implement them. In light of dialectical materialism, two proposals were analyzed to circumvent the situation of disparity between the legal-constitutional and factual realities. The proposal for the creation of an intermediate category of workers, with grades of subordination and autonomy, and a legal regime of its own, did not seem encouraging because be insufficient to solve the problem, due to failed experiences in the comparative law and the deficiency, in terms of fundamental rights, of the project of law that intended to implement such category in Brazil. Bond recognition of employment to workers on demand, despite encountering resistance from the Superior Labor Court, proved to be an efficient measure to materialize the constitutional work, adopted in other legal orders and defended by some regional courts in the country. The main divergence that hangs over the topic lies in the characterization of the subordination element, which cannot be restricted to industrial conceptions in the face of technological changes that alter their way of manifestation, an idea accepted by the national legal order