Representação adequada nas ações coletivas: controle jurisdicional no Poder Judiciário Trabalhista

Abstract

The main objective of this thesis is the proposal on the possibility of jurisdictional control of the adequate representation of those legitimated for collective actions under the jurisdiction of the Labor Court. The subject is controversial both in doctrine and in jurisprudence. The reason for this divergence is because Brazilian legislation (CDC and LACP) expressly provides for public and private entities that have the legitimacy to file a class action in defense of group or class rights or of some segment of society. Because of this legal provision, the Brazilian magistrate, in theory, has nothing to do but accept the legitimized elected by the microsystem of the collective process in Brazil, even if the legitimized one is incompetent and negligent in conducting the process. The idea of this work is contrary to this understanding. However, the study focuses on collective actions that are filed in the Labor Court, protecting homogeneous individual rights of workers. For this, it demonstrates the attempts that have already been made in order to regulate the matter, creating norms that expressly establish the possibility for the magistrate to control and decide on the adequate representation of the legitimated. To enable the intended conclusion, a survey of the relevant legislation is carried out in order to establish the understanding that the Brazilian magistrate, even in the absence of an express rule, is already authorized to control (de lege lata) the representation for the actions collective rights, even if this grant is limited to certain legitimate parties. After defining the legal nature of adequate representation, which is not to be confused with the nature of legitimacy, and based on the provisions of the Constitution and the Code of Civil Procedure, it is possible to say that this control can be expanded. The inspiration for this investigation was supported by the treatment given to purchased law, especially North American law, which serves as a model for the legal systems of other countries interested in the study and development of the collective process. In the end, the thesis confirms its understanding, listing the legal, jurisprudential, doctrinal and principled foundations that allow the Brazilian magistrate in general, and labor in particular, to firmly control the representation that is exercised by the entities legitimated by the legislation for the filing of class actions. In addition to the procedural legislation that already exists, the central point of the foundations is the constitutional principle of due process of law, both in its substantive and procedural sense, with emphasis on the principles or duties of reasonableness and proportionality as factors of an adequate and fair process. Through this control, the magistrate will assess and decide, based on the necessary elements, whether the representation is adequate for that specific case.