The five functions of state regulations and the sophistry of the prevalence of what is negotiated over what is legislated

Abstract

This article offers a critical analysis of the thesis that collective bargaining norms should prevail over statutory labor law in Brazil, in light of recent Supreme Court jurisprudence (Tema 1046) and the historical development of labor regulation. It argues that the supposed antagonism between state-imposed and collectively bargained norms is a false dichotomy. While recognizing collective bargaining as a space for sectoral innovation and social progress, the article contends that state labor norms fulfill five essential functions: (i) protecting the core of non-negotiable rights; (ii) establishing a balanced normative ecosystem; (iii) serving as a fallback mechanism in the absence of negotiated instruments; (iv) enabling innovation through normative stability; and (v) asserting pedagogical and cultural values that promote social justice. The article advocates for a dialogical and complementary normative model in which statutory and negotiated norms mutually reinforce each other, in accordance with the principles of a democratic rule of law.