The requirement of mutual agreement for the establishment of bargaining collective against the principle of jurisdiction no distance

Abstract

In labor relations often arise conflicts that relate to a category of workers and may involve a company or economic category. These collective conflicts can be solved by autocomposição , which is collective bargaining, or heterocomposição , which can be by mediation, arbitration or court. Collective bargaining allows the parties themselves agree on the ideal and possible conditions for the moment. However, when the parties can not reach an agreement, it is necessary to state intervention for the pacification of the conflict through the courts, through the establishment of a collective bargaining agreement. The Constitutional Amendment nº45 of December 8, 2004, It brought innovations to the commencement of collective bargaining agreements of interest, which are those that deal with working conditions. The new wording of Article 114,second paragraph of the Constitution established that the filing of bargaining agreement in this case should be by "mutual agreement". The inclusion of the need to agreement greatly hindered the commencement of the action , creating the planning an action that depends on the consent of the other party for its filing. For this reason, it was understood that it is away from a conflict of judicial protection. Admitting the need for bringing together would make the state a duty of social pacification, leaving many unresolved conflicts. The only alternative for workers would be the call to strike, to force the company or economic category to negotiate.