Greve ambiental individual: propostas para a sua efetividade

Abstract

The ILO’s Convention n. 155, an international human rights treaty that bears the hierarchical-normative position of supralegality in the Brazilian legal-constitutional system, provides for the possibility of triggering an environmental strike for the self protection of life or health, by a single worker. The research problem rests in the (in)effectiveness of ILO’s Convention n. 155, due to the series of obstacles that militate in favor of its ineffectiveness: the worker's vulnerability; the lack of protection for the environmental striker and the difficulty in recognizing the guarantee of employment; the lack of strengthening of anti-discrimination protections; the lack of recognition of the right to refuse work situations that involve an imminent and serious risk to life or health; deficiency in the collective governance of the work environment; the inexistence of an adequate exercise of the right to environmental information, at its three levels (right to inform, right to seek information, and right to be informed); and the worker's lack of technical knowledge to adequately exercise self-protection. The research goes deeper into the institute of the individual environmental strike and the general objective is to seek ways to guarantee the effectiveness of its outbreak, by a single worker. The research presents itself theoretical, for the delimitation of the environmental strike in its individual bias; jurisprudential, to recognize the meaning and scope of the institute in the iterative, current and notorious jurisprudence of the Superior Labor Court; and empirical, to verify the effectiveness of the environmental strike. The results show that, currently, the individual environmental strike is not effective, lacking proposals for its effectiveness. It concludes with the presentation of proposals for its effectiveness: caution in recognizing the abusiveness of individual environmental strikes, with inquiry into the extensive information offered to workers, so that they could exercise this right/guarantee; a reverse onus clause, that shifts the burden of proof onto the employer; the communication to other social actors and not just to the worker's direct superior; a supported decision-making, with recourse to technical advisers outside the company; the guarantee of indemnity for its free exercise, without fear of employer reprisal; and the protection of self-protection as an intrinsic corollary of freedom of association, with the presumption that the worker acted in good faith in defense of his life or health.