A arbitragem nas relações individuais de trabalho

Abstract

This paper aims to investigate the feasibility of using arbitration in the context of individual work relations. At first, it makes a historical incursion of the institute, whose use goes back to the oldest civilizations, to then bring its theoretical conceptualization and the various currents about its legal nature, information essential for the good understanding of the object of the study. Subsequently, the evolution of the arbitration in the national scope is analyzed, without prejudice to the indication of the registrations made in the positive country law, and, in continuity, the changes promoted by Law 9.307/96, which brought dynamism and effectiveness to the arbitration procedure and, above all, gave greater legal certainty to the sentences handed down. In the next section, we investigate the types of arbitration, its guiding principles, and the advantages that this institute presents before the state jurisdiction. The issues related to the suspicions of unconstitutionality that fell on the institute were also the subject of analysis of this study, giving due emphasis to the confrontation of the matter by the Federal Supreme Court, which, in effect, eliminated the jurisprudential cizânia. Next, it is sought to specify the types of arbitration agreement, namely, the arbitration clause and the arbitration agreement, identifying their own characteristics and the legal effects, positive and negative, that they produce. The study of the conceptual elements of arbitration is exhausted, in the present study, with the evaluation of the subjective and objective conditions required by law for the viability of arbitration, which is called, by doctrine, arbitrability. Having examined the general substrates of arbitration, it is proper to study the institute in the labor court with an emphasis on the individual level, and it is stated at the time that the argument that seeks to rule out its use in this branch of law, based on the principle of the non-availability of labor law, shows itself to be reductionist and, ultimately, out of character. Coming to the final part, it is stated that the possibility of concluding the arbitration agreement, in its condition of legal business, is related above all to the free and conscious manifestation of the employee, a presumably vulnerable part of the relationship. An objective assessment is made of the circumstances which, in the present case, influence the employee's susceptibility and, consequently, lead to a greater or lesser degree of credit to the expression of the will leading to the conclusion of the arbitration agreement, personal condition of the employee, the moment of the issuance of the declaration of will and also the existence or not of the union assistance to the realization of said agreement. Finally, with all these elements, the work is based on the possibility of using the arbitration agreement in the context of individual labor relations in relation to each of its species, considering the circumstances surrounding its conclusion and, are directly influencing the formation of the healthy manifestation of the employee's will