Access to justice, regardless of the payment of costs, has always been guaranteed by Article 5 of the Federal Constitution, and all that is required for it to be granted is an unequivocal demonstration of the impossibility of paying court costs without compromising the subsistence of the individual and their family.
In the Labor Court, by simple petition and without other evidence required by law, the party could benefit from free legal aid as long as they demonstrate the absence of requirements for its rejection, since free legal aid is not only for the needy, but can also be requested by those who are unable to pay court costs and attorney’s fees without harming their livelihood and that of their family.
In this sense, article 99, paragraph 2 of the CPC states:
The judge may only reject the request if there is evidence in the case file that the legal conditions for granting the gratuity are not met, and before rejecting the request, the judge must order the party to prove that these conditions have been met.
In the labor sphere, until then, TST Precedent No. 463 regulated the requirements for granting gratuity by means of a simple declaration of financial insufficiency.
However, the labor reform (Law 13.467/17 – enacted on July 13, 2017) in its article 790, brought more objective criteria to the granting of gratuity, which from now on, will be granted when it is proven that the party’s salary is equal to or less than 40% of the maximum limit of the benefits of the Social Security System (currently corresponding to the amount of R$ 2.212,52), or in the face of demonstrating insufficient resources to pay the costs of the process.
In other words, it is necessary to demonstrate the lower income or prove insufficient resources, such as the commitment of salary to pensions, health insurance, etc.
Let’s see:
3 – Judges, adjudicating bodies and presidents of labor courts of any instance may, at their request or ex officio, grant the benefit of free justice, including with regard to documents and instruments, to those who earn a salary equal to or less than 40% (forty percent) of the maximum benefit limit of the General Social Security System.
4º – The benefit of free justice will be granted to the party who proves insufficient resources to pay the costs of the proceedings.” (BRAZIL. Presidency of the Republic. Civil House. Sub-Cabinet for Legal Affairs. Law No. 13,467 of July 13, 2017)
Nowadays, people expose themselves absurdly on social networks, for example on Facebook, Instagram among others, and the excessive use of these means of communication generates exposure of intimacy and personal life, because, through these means, people flaunt a condition that they live, or even do not live.
For example, many Claimants experience the rejection or annulment of free justice benefits due to posts made on Facebook.
With this in mind, we conclude that it is up to lawyers to carefully analyze their clients’ allegations of hyposufficiency, mainly because, if it is proven by the opposing party that the applicant for the benefit is not hyposufficient, it will be up to the judges to analyze the alleged miserability, and if any requirement is present that contradicts the allegation of hyposufficiency, bad faith may be found, another issue that has undergone considerable changes with the Labor Reform (Law 13.467/17), and which we will address in another article.
Marcos Martins Advogados is always attentive to legislative changes and to the understandings and positions of 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 adjusted to the current interpretation of the Laws.
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BRAZIL. Federal Law No. 13.105 of March 16, 2015 (“New CPC”). Brasília: Presidency of the Republic, 2015.
BRAZIL. Presidency of the Republic. Civil House. Sub-Cabinet for Legal Affairs. Law No. 13,467 of July 13, 2017. Amends the Consolidation of Labor Laws (CLT), approved by Decree-Law No. 5,452, of May 1, 1943, and Laws No. 6,019, of January 3, 1974, No. 8,036, of May 11, 1990, and No. 8,212, of July 24, 1991, in order to adapt the legislation to the new labor relations.
