Tempos flexíveis e teletrabalho: a suplantação do controle de jornada pelo “trabalho feito” e a necessidade de efetivação do direito à desconexão do trabalho

Abstract

The present research is part of the field of work studies, focusing on the teleworking modality. Its general objective is to investigate the implications of the temporal flexibility in telework in relation to the working hours. In specific terms, it aimed to: a) explore the theoretical consequences of temporal flexibility in telework; b) establish the legal framework that involves teleworking in brazilian law; c) to investigate the practical consequences of temporal flexibility in teleworking from the perception of teleworkers about their work reality. To this end, an exploratory study was carried out, with a qualitative approach, based on the dialectical method and developed through bibliographic and documentary research, at first, followed by field research. The right to limit working hours as embodied in article 7, item XIII, of the Federal Constitution is part of the list of negative social rights, being fully and horizontally effective, hence the duty to abstain from their violation; in addition, the principle of prohibition against social retrogression prevents such a level of dignity gained from regressing under the motto of the impossibility of controlling the working hours as a general rule in teleworking relationships, it being understood that art. 62, clause III, of the CLT, is incompatible with the fundamental right to limit the working hours, and is therefore unconstitutional. Fourteen salaried teleworkers from different activities in this work format were interviewed and it was found that even in the face of the different types of functions performed, be it development/creation, sales, support or bureaucratic and operational, there is flexibility in relation to the distribution of activities and working hours, which manifests itself in different aspects. The working hours control is supplanted by the work done and the teleworkers interviewed remain connected, to a greater or lesser extent responding to the demands of customers and employers, pointing to the urgent need to seek ways to effectively disconnect from work to guarantee the rest and leisure of the worker, which assumes the limitation of working hours.