The articulation of the ILO's Fundamental Conventions in the Superior Labor Court: reflections from the perspective of conventionality control

Abstract

Introduction: This article begins with a study of the ILO's 1998 Declaration on Fundamental Principles and Rights at Work and then focuses on the management of labor human rights in judicial proceedings in Brazil, especially in the Superior Labor Court.

Objective: The aim is to determine how the fundamental conventions outlined by the ILO in the 1998 Declaration are reflected in TST’s decision-making process. Additionally, the goal is to determine if and how the TST refers to this international norm, which is considered a jus cogens norm, when applying conventionality control.

Methodology: In addition to the literature review, a three-stage case law analysis was carried out, from a quantitative and qualitative perspective, of judgments in Appeals for Review, considering the period from June 10, 2022, a milestone in the updating of the fundamental principles at work by the ILO, until December 31, 2024, for data tabulation.

Results: The judgments on Appeal for Review invoke conventions from all thematic areas related to the fundamental principles of the ILO and conventionality control is expressly mentioned in Court decisions. However, from both quantitative and qualitative points of view, there is still a prevailing conception of the static and isolated application of the ILO's fundamental conventions in the formation of the Labor Court's jurisprudence, as opposed to the desired increase in the use of the conventionality control technique, which is necessary for effectively integrating national and international legal norms into the Court's regulatory standard.

Conclusion: The TST is familiar with conventionality control and the fundamental ILO conventions are part of its decision-making routine, but there is still significant room for progress, especially considering recent initiatives led by the National Justice System, including the Labor Court itself. Overall, the article aims to reinforce the need to further adopt a dynamic, rather than static, stance when considering the concepts established within the ILO, especially the 1998 Declaration with its fundamental principles and conventionality control.