Contratualização da função pública no Brasil: apontamentos acerca do contrato administrativo de pessoal

Abstract

This work seeks to demonstrate that the unilateral-statutory bond of the civil service, defended by the majority administrative doctrine and by Brazilian jurisprudence and developed from the organic conceptions of political power and liberal values, does not succeed in dialoguing with the paradigm democratic and social rule of law and with the new gem assumed by contemporary legal-administrative dogmatics. Proceduralization, contractualization and concertation feature prominently in the systematics of today's administrative action, so that unilateral, aggressive and heteronomous forms – inherent in the statutory functional regime – are no longer tolerated in a State model that seeks more acceptance rather than imposition. In this context, the contract emerges as an ideal binding instrument for the existing relationship between agent-State, as it brings, as a characteristic of its own, the bilaterality and weighting of interests – convergent and divergent. It is understood that the contractualization of the civil service must follow the legal regime of public law, in view of the constitutional segregation of the legal discipline that guides the common work relationship and the work relationship with the State. The proposition of the contractual bond of the Brazilian civil service will necessarily depend, due to the express constitutional provision, on legislative interposition – which is entitled, for the purposes of this work, as a Framework Law –, which will provide for the essential functional issues and matters linked to the reserve of law. The administrative personnel contract, which may be individual or collective (preceded, in the latter case, by collective negotiation of public servants), will deal with other functional nuances not dependent on the cogent legal discipline, which will remain included in the negotiating object of this type administrative contract.