COMPETENCE TO JUDGE CONTROVERSIES ON ISSUES RELATED TO THE PRE-CONTRACTUAL STAGE OF ADMISSION OF PERSONNEL AND EVENTUAL NULLITY OF THE PROCESS, REGARDING MIXED ECONOMY SOCIETIES

Abstract

This paper analyzes the competence of labor justice after the reform of the constitutional text by the 45th Amendment, which inserted the expression “employment relationship” which led to several academic and jurisprudential debates on the scope of the term. The research shows that the case law has decided on the competence of specialized justice when the employment relationship is evident, with incidence of the rules of labor law, pointing out, however, the residual aspect of this choice. The research also addresses labor relations that must, necessarily, start with typical instruments of other branches of law. Banco do Brasil, for example, hires its public servants after selection by public exams. In this case, the employment relationship arises from a previous administrative relationship. This way, the research observed that, when defining the competence to prosecute and judge controversies regarding the pre-contractual phase of selection and admission of personnel by legal entities of the Indirect Public Administration, the Supreme Federal Court followed the pattern observed in previous controversies. Up until then, there was a divergence between two parallel currents. The common justice, represented by the Superior Court of Justice, kept the understanding that the rules applied to the issue are eminently of administrative law and, therefore, of its competence. On the other hand, the Superior Labor Court had the understanding that the issue was shown as pre-contractual to an employment relationship, being able to invoke the competence of the specialized justice. Having analyzed the decision on the issue of competence, the research sought to ascertain the procedural consequences of such a change.