The collective bargain in the context of public administration, under the superlegality and the conventionality control

Abstract

This paper discusses collective bargaining work as a constitutional guarantee of the fundamental human right to work of civil servants, in view of the conventionality control. However, the problem lies in examining whether the instrument of collective bargaining may be applicable to the public sector; thus, analyzing if the institute is also compatible with the Brazilian Constitution. This study addresses the doctrinal and jurisprudential debate on the hierarchy of international treaties – specifically those that guarantee the realization of collective bargaining in the Brazilian public service. This research aims to show that international human rights treaties that are incorporated into national law have domestic applicability, which ensures the viability of the Public Collective Bargaining. This study also investigates the possibility of implementing conventionality control, which seeks to ground the collective bargaining in Brazil´s domestic environment, and discusses critically the ADI Nº. 492 of the Supreme Court that declared the unconstitutionality of Article 240, paragraphs "d" and "e" of the Law Nº. 8,112 / 90. With the use of the bibliographic methodology, doctrinal and jurisprudential analyses, this paper examines international treaties before the advent of Amendment to the Constitution nº. 45/2004 of Brazil, and its implication in the control of conventionality, particularly within the realm of the the conventions` number 151 and 154 of the International Labour Organization. This paper concludes that the collective negotiations in the public administration does not affront the Constitution and enables maximum effectiveness, as they ensure the achievement of fundamental objectives.