Da validade da clausula de permanência nos contratos individuais de trabalho

Abstract

In the clause of permanence we find the collision of two fundamental rights, the employee's right to work and the employer s free initiative. Application of the principles of proportionality and reasonableness. Principles of good faith and social function of the contract as limits to the autonomy of will (pacta sunt servanda). In labor courts the contractual freedom shall observe the standards established in Article 444 of the CLT. The autonomy of the will is legally limited by fundamental rights (especially by human dignity), by general principles of Law, and by the principles of the labor Law. If not observed, the clause will not be considered valid, but an abuse to employer's right under Article 187 of the Civil Code. Thus, the objective of this study is the hypothesis of validity of the clause of permanence in individual employment contract. The method used is the application of the alien Law to concrete hypothesis, bringing the little labor jurisprudence to reader s knowledge. The results achieved came from the analysis of the Spanish and Portuguese doctrine, which expressly rule on the matter under study. Thus, the conclusion was that the clause of permanence is compatible with the Brazilian Law, and for being valid it is required the contract to be based on the principles of good faith, social function of contract, proportionality, and reasonability, always respecting the human dignity as the foundation of the Democratic State itself