Material limits to the power of constitutional reform related to the entry of children and adolescents into the labor market: interpretation of the “petrea clauses” and prohibition of regression

Abstract

This article aims to present a legal basis to protect children and adolescents from precarious work and, to this end, develops the thesis that the wording of art. 7th, XXXIII, of CF/88, is protected by the incidence of the immutable statement of art. 60, § 4, IV, of CF/88, which establishes that “a proposed amendment aimed at abolishing individual rights and guarantees will not be subject to deliberation”. The prohibition of reducing the working age to levels below sixteen years old finds material limits to the power of reform in the principles of defending the physical and emotional safety of young people, first generation rights. However, even if protection against early work is considered a second generation right, it will also be based on the incidence of the “petrea clause”, as constitutional doctrine and STF jurisprudence already recognize the possibility of art. 60, § 4, IV, be interpreted extensively to encompass the entirety of fundamental rights. The doctrine of full protection of children and adolescents, provided for in art. 227 of CF/88, as well as the values of international Human Rights standards, reflected in the idea of “constitutionality block”, affirm the prevalence that fundamental rights have in the Brazilian legal system and, in this way, are also barriers to prohibit reduction of the working age. The method used to develop this article was based on the analysis of doctrine, legislation and jurisprudence, relating them through the deductive method.