THE LIMITATION OF NON-PECUNIARY DAMAGES AND THE PROTECTION OF THE FUNDAMENTAL RIGHT TO WORKERS’ HEALTH: TENSIONS BETWEEN THE LABOR REFORM AND THE INTER-AMERICAN HUMAN RIGHTS SYSTEM

tensões entre a reforma trabalhista e o sistema interamericano de direitos humanos

Abstract

This article examines the tariffing of non-pecuniary damages introduced by Law nº 13.467/2017 from the perspective of the protection of the fundamental right to workers’ health and its compatibility with the Inter-American Human Rights System. It is based on the premise that the model established in Article 223-G, §1, of the Brazilian Consolidation of Labor Laws, by linking compensation to the victim’s salary and setting predefined parameters, undermines the principle of full reparation and the centrality of human dignity. The study adopts a qualitative approach, using a deductive method, and analyzes the Brazilian constitutional framework, statutory law, and the jurisprudence of the Inter-American Court of Human Rights, particularly the case Workers of the Fireworks Factory of Santo Antônio de Jesus vs. Brazil. It demonstrates that the Inter-American System is grounded in the principle of restitutio in integrum, encompassing compensatory, preventive, and pedagogical measures, which are incompatible with abstract limitations on compensation. It further shows that tariffing may produce discriminatory effects by relying on economic criteria unrelated to the extent of harm, while also weakening the preventive and pedagogical functions of civil liability. The article concludes that such compensation caps are materially unconventional with international human rights standards, thus requiring the exercise of conventionality control by domestic courts to ensure alignment with international parameters for the protection of workers’ dignity and health.