Luara Zanfolin Frasson de Rezende
Lawyer at Marcos Martins Advogados
As explained in a previous article, with the enactment of Law 13,467 of 2017, there were several innovations and improvements to the labor routine. Among them, we can mention the new forms of conflict resolution, in force since 11.11.2017: a) consensual contractual termination, b) arbitration clause and, c) ratification of out-of-court settlements.
Article 484-A of the Consolidation of Labor Laws established contractual termination by agreement between employee and employer, subject to certain requirements. This type of termination benefits both parties, in that the employer will not have to keep an employee who no longer meets the company’s needs because of the value of their termination, just as the employee will not have to “wait” for their dismissal for fear of losing “their rights”.
In this form of termination, the employer will be responsible for paying 50% of the prior notice, if indemnified, and the indemnification of the Guarantee Fund, with the other sums being paid in full, while the employee will be entitled to use up to 80% of the amount deposited in the linked account, and will not be eligible for Unemployment Insurance.
With regard to arbitration, there has been a significant change. This is because the use of arbitration to resolve labor disputes has never been advised, since the decisions handed down in arbitration chambers are not res judicata and could therefore be re-disputed in the labor courts. However, with the inclusion of article 507-A in the Consolidated Labor Laws (CLT), arbitration clauses can be agreed to in employment contracts, provided that this is done at the employee’s initiative or with their express agreement. This is for employees who earn a salary of more than twice the maximum limit established for benefits under the General Social Security System, equivalent to a salary of approximately R$12,000.00.
Thus, for these cases, if the arbitration clause is included, any breaches of the contract and/or labor legislation can only be discussed in the Arbitration Chambers, without any re-discussion of the issue in the Labor Courts, granting greater legal certainty to the employer and removing the “hyposufficient” label attributed to the employee, regardless of their monetary gain and/or education.
Also in this line of reasoning, we have the expansion of the jurisdiction of the Labor Courts to decide on the approval of out-of-court settlements in matters related to the Labor Courts. With this expansion, “Chapter III-A of the Voluntary Jurisdiction Process for the Ratification of Out-of-Court Settlements” was created, with the inclusion of articles 855-B to 855-E which, in our opinion, was one of the most innovative changes in labor legislation.
In this new modality, the parties will be able to agree on all the clauses necessary to resolve the conflict and file a request for the agreement to be ratified before the Labor Court, so there is no longer any risk that, after the out-of-court agreement has been reached, the employer will suffer the consequences of a labor lawsuit. This guarantees legal certainty in the negotiation, but with the judge’s analysis, also ensuring compliance with current legislation and that the clauses are not harmful to the employee.
In this way, what is hoped for with these modalities is the dynamization and flexibilization of employment relationships, a reduction in the need for the judiciary to settle disputes between employees who do not qualify as hyposufficient, as well as providing legal certainty for out-of-court negotiations, with a consequent reduction in labor lawsuits, which are more expensive and hinder entrepreneurship in Brazil.
Marcos Martins Advogados is always attentive to changes in the law and to case law in labor matters, maintaining its commitment to excellence in the provision of legal services to its clients by providing appropriate responses that are perfectly in line with the current interpretation of the law.
