Sibele de Oliveira Pimenta
Lawyer at Marcos Martins Advogados
Federal Ordinary Law 13.467/2017 [1], which introduced the “Labor Reform” into the legal system, came into force six months ago on May 11, and what we saw in fact in this first half of the year were more intellectual discussions about its constitutionality than the effects of its actual applicability.
If that wasn’t enough, the expiration of Provisional Measure 808/17 on April 23, 2018, also increased the number of questions, as its text provided important clarification on various obscure points of Law No. 13. 467/2017, such as the applicability of the reform to current employment contracts, and dealt with controversial points such as unhealthy activity by pregnant and breastfeeding women, individual agreement for 12×36 working hours, provisional contribution and with its fall, the text of the Law as published returned to force, as if the Provisional Measure mentioned had never existed.
In the judiciary, magistrates, supported by the Statements of Anamatra – the National Association of Magistrates of Labor Justice, resist the application of Law No. 13,467/2017, under the main argument that several changes imposed are unconstitutional and that it does not apply to lawsuits filed before the Labor Reform, this understanding applied even to procedural matters, such as costs and succumbent fees.
In this context, Brazilian employers and workers are wondering about the real effects of the more than one hundred changes made by Law No. 13,467/2017 to the Labor Law (CLT), what has or will actually change in the complex relationship between employee and employer? Are workers deprived of important social rights and left to fend for themselves? Will employers now be able to sleep soundly, without fear of labor claims and large fines?
There are many uncertainties and this article does not intend to enter into the tortuous discussion about the elimination or reduction of historic social conquests, not least because decent work is protected by the Magna Carta and this is not open to question. Any change, even if it is legal, cannot override fundamental rights and the Federal Supreme Court, as guardian of the Federal Constitution, will have to decide what does or does not affront it, purging the real unconstitutionalities contained in the labor reform law, in the meantime the uncertainties divide opinions.
But the reflection brought here in these lines is more simplistic and goes through the corridors of the Labor Courts and their first decisions, to point out the main reflexes of the changes imposed by the Labor Reform, in these first six months and what has effectively changed in the routine of the employer and its employees?
First of all, it should be clarified that, unlike the rules of substantive law, procedural laws produce immediate effects, and the new rule must be applied in ongoing proceedings and not only those that begin after the new law comes into force (theory of isolation of procedural acts), a matter that is also dealt with by the CLT in its article 912 and the CPC in its articles 14 and 1,046. Thus, as far as procedural rules are concerned, the application of the Labor Reform is immediate, while as far as substantive law rules are concerned, those in force at the time of the employment contract are applied. Therefore, the first changes are obviously more visible in the procedural aspect.
With an estimated reduction of almost 50%, the main effect brought about by the Labor Reform is undoubtedly a reduction in the number of labor claims filed. The uncertainties brought about by the new law are accompanied by caution on both sides.
One of the novelties brought about by the Labor Reform is the need to settle claims. According to the new wording, the exception rule has become the general rule, requiring the value of the claims to be expressly stated in the initial petition, and the value of the case must correspond to the sum of the claims.
Although the legal text is clear and leaves no room for different interpretations, what we see on a day-to-day basis is that the majority of Labor Claims filed under Law No. 13,467/2017 are still not being settled, ignoring the provisions of Paragraph 1 of Article 840 of the CLT. However, while some magistrates end up granting time to amend the petitions filed in the name of protecting the principle of no surprises, others don’t even accept the preliminary objections of ineptitude in the name of access to justice.
Another important change was the imposition of payment of costs by the Claimant who misses the hearing unjustifiably, even if he is a beneficiary of Free Justice. Payment is now a prerequisite for filing a new lawsuit.
Under the old wording, when the claimant failed to appear at the initial hearing unjustifiably, the consequence was simply that the case was closed. With the Labor Reform, the plaintiff who fails to appear at the initial hearing or Una unjustifiably, wishing to renew the lawsuit, will have to pay the costs of the previous lawsuit, even if they benefit from Free Justice.
The new law also condemns witnesses for bad faith litigation. According to the new law “Art. 793-D. The fine provided for in Article 793-C of this Consolidation shall apply to a witness who intentionally alters the truth of the facts or omits facts essential to the judgment of the case.”
With the Labor Reform, the witness, who was previously only liable for the crime of false testimony, is now also liable for damages if they harm the parties. But bad faith litigation is not only applied to witnesses, but also to the parties, including the Claimant if he is a beneficiary of free justice. Some recent judgments are already applying the penalty to claimants for requests that they know they are not entitled to, such as the break in article 384 of the CLT for male workers.
Another aspect is the inter-current statute of limitations, which came to the Labor Courts expressly with the inclusion of article 11-A in the CLT. The change introduced by the labor reform, with an impact not only on future lawsuits but also on those in progress, resolved the legal insecurity created by the doctrinal and jurisprudential debate as to the incidence of intercurrent prescription in labor proceedings in the face of inactivity on the part of the plaintiff for more than two years.
Another controversial point of the Labor Reform was the end of mandatory union dues, removing the compulsorynature of union dues, because once the compulsory nature of this pecuniary payment is removed, there is no need to talk about union dues as having a tax nature as of Law 13,467/2017, no longer fitting the definition of a tax.
Therefore, union dues, as well as assistance and confederation dues, can now only be deducted with the prior express authorization of the worker, with legal experts differing on whether this authorization can only be individual or collective.
The unions, fearful of losing their main source of income, organized themselves in assemblies, informing companies about collective authorizations, protected by Enunciation 38 of the National Association of Labour Magistrates (Anamatra).
The Labor Reform has created a real paradox by making optional a contribution that the constitution guaranteed the nature of a tax, leading to heated discussion about the constitutionality of Ordinary Law No. 13,467/2017. However, regardless of discussions, the fact is that the Union Contribution can no longer be demanded without the prior and express consent of the employees. In other words, union dues can only be levied if there is the effective agreement of the members of the category, and the fact that the Assembly established for this purpose has taken place does not remove the worker’s right to oppose what was decided collectively, especially since he did not even participate in the act, his consent being fictitious, hence the discussion also about the validity of the deduction for supposed collective grant coming from the Assembly.
For the avoidance of doubt, it is also worth noting that union dues were only imposed, without distinction, on union members or non-members, because until then they were of a tax nature, a fact which, it should be repeated, was ruled out by the new wording of article 578 of the CLT given by Law No. 13,467 of 2017. It is therefore unacceptable for trade unions to ignore the current legal provisions governing union dues in order to simply collect them, without any prior and express authorization from employees, especially when considering that the freedom to join or not to join a trade union is related to the constitutionally guaranteed individual right, which has the consequence of agreeing not to have any contribution deducted from wages in favor of the trade union, including union dues, the worker being the most interested party.
In view not only of the issues highlighted, but also of the various repercussions of the Labor Reform, there are countless interpretative discussions that have arisen as a result of the new law. However, the fact is that in the first six months of the Labor Reform there is still no consolidated understanding of the issues, nor is there a common interpretation among magistrates, or even a consolidated position in doctrine and jurisprudence, and any conclusion at this early stage is premature. In the meantime, employees and employers, lawyers and legal practitioners in general, are dealing with divergent decisions, while awaiting the first consolidation of case law.
[1] BRAZIL. Law No. 13,467, of July 3, 2017. Consolidation of Labor Laws (CLT), Brasília, DF, Jul 2017
