BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

In private relationships, particularly in the employment relation, the employee, when enters in the relationship, carries the condition of human person, a bearer of fundamental rights. And, according to Vecchi, 42 these fundamental rights also bind private individuals and can be invoked and applied even in situations where state power is not present. 43 It’s called “effect of fundamental rights in private relationships,” also known as “horizontal effect of fundamental rights”, which, according to Sarlet, 44 brings the idea that fundamental rights radiate effect also in private relationships and not only constitute rights against the public authorities”. In Brazil, the theory of horizontal effect of fundamental rights finds constitutional protection in article 5, paragraph 1, of CF/1988 (gives immediate applicability of fundamental rights), in article 1, item III, of CF/1988 (recognizes the dignity of the human person as the foundation of the Federative Republic of Brazil); in articles 5, item XXIII, 170, caput , and 186, all of the CF/1988 (related to the social function of property, contract, the company, and the free initiative), and in article 1, item IV, of CF/1988 (social value of labor). It adds up, still, the normative power of the Constitution, the recognition of the hierarchical level higher than the constitutional norms, the unity of the juridical order and the normative character of fundamental rights. Returning to the teachings of Vecchi 45 about the fundamental rights of workers, the author presents them in two categories: The first refers to the “specific rights of workers” (example: of social rights in article 7 of the CF/1988), whose implementation is independent of questioning. The second would be the general fundamental rights unspecific, intended for any human person (example: the right to privacy and private life, the right to freedom of expression, freedom of religion, the right to of due legal process and the right to honor). of fundamental rights: a general theory of fundamental rights in the constitutional perspective. Porto Alegre: Bookstore of the Lawyer, 2012, p. 95) clarifies that, in addition to being the unifier of all fundamental rights, also meets a legitimating function of the recognition of fundamental rights implied, arising out of or provided for in international treaties, revealing, insomuch their intimate relationship with article 5, paragraph 2, of our Fundamental Law. 42 VECCHI, I. D. The effectiveness of fundamental rights in private relations: the case of the employment relationship. Revista do TST . Brasília, 2011, v. 77, n. 3, p. 111. 43 As to the point in analysis, Vecchi (VECCHI, I. D. The effectiveness of fundamental rights in private relations: the case of the employment relationship. Revista do TST . Brasília, 2011, v. 77, n. 3, p. 113) stresses that “[…] the doctrine and jurisprudence have found that, often, the State is not the “great villain” in the of fundamental rights, but rather, private individuals, especially when equipped with power (economic or social) who present themselves as “enemies” of these rights. Indeed, in the societies and Democratic State of Law with social nature, the State should act as a “friend and protector” of fundamental rights, not least because many of them can only be achieved with the state intervention. The fact that private subjects can be effective and powerful enemies of fundamental rights gained in importance when the phenomenon of globalisation, under the neo-liberal bias, imposes severe restrictions on state power and increases, in geometric way, the power of large private groups”. 44 SARLET, I. W. The effectiveness of fundamental rights: a general theory of fundamental rights in the constitutional perspective. Porto Alegre: Bookstore of the Lawyer, 2012, p. 148. 45 VECCHI, I. D. The effectiveness of fundamental rights in private relations: the case of the employment relationship. Revista do TST . Brasília, 2011, v. 77, n. 3, p. 119-121.

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