Patrícia Monici Traballi
Lawyer at Marcos Martins Advogados
Much has been said about the approval of the Labor Reform as it was published, and the insecurity in the current legal system is indisputable, given the innovation and break with the system established before its entry into force. As a result, the Executive Branch even tried to clarify and adjust points of application, issuing Provisional Measure 808, which lost its effectiveness because it was not converted into law.
Thus, the plenary of the Federal Supreme Court (STF) recently began the trial of the first in a series of lawsuits dealing with the unconstitutionality of the Labor Reform. There are a total of 21 lawsuits filed by the Attorney General’s Office, challenging various reformed articles in the Consolidation of Labor Laws (CLT). The lawsuits attack certain provisions of the Reform, in which the Attorney General’s Office believes there are violations of workers’ fundamental rights.
The purpose of a Direct Action for Unconstitutionality is to declare laws and normative acts, or part of them, unconstitutional, i.e. to determine the incompatibility of a given legal norm with the Federal Constitution, removing the law from the legal system or restricting its effects to a certain way of interpreting the reforming norm.
The topics dealt with in the 21 ADIns are varied, but in general they deal with probable decreases in the intensity of rights traditionally attributed to workers, reducing their effectiveness. We can highlight some considerable examples that are the subject of legal action:
– The end of compulsory union dues.
– The possibility of an intermittent work contract.
– The creation of a maximum amount for compensation for non-pecuniary damage.
– The adjustment of the appeal deposit (the amount given as a guarantee by the party wishing to file an appeal) based on the same savings rates.
– The creation of more restrictive rules for granting free legal aid.
It is certain that in this unregulated context and together with the fall of Provisional Measure 808, which aimed to adjust points of the reform, there has been great legal instability for both employees and employers, and the STF’s pronouncement is awaited to guide the parties and judges in this period of uncertainty. In this new scenario, the uncertainties have led to greater caution on both sides, with the main effect being a reduction in labor claims.
It is also important to note that the TST recently approved normative instruction 41/2018, which regulates procedural law rules relating to the Labor Reform. The general rule is based on immediate applicability, without, however, affecting lawsuits already in progress, thus applying only to cases initiated after it came into force on November 11, 2017. As for the substantive law, it will be analyzed and discussed according to each specific case, while the magistrates are guided by the Anamatra Statements, which have no binding value.
Undoubtedly, the discussion of the constitutionality of points of the Labor Reform is one of the most intense topics in the current scenario of Labor Law, altered by the rules of the Labor Reform. But only when the Supreme Court rules in favor of one or other interpretation or constitutionality can the practical outcome significantly change the way companies, employers and employees negotiate their labor relations and measure the costs associated with such relations. In the meantime, as parties and legal operators, we can only wait.
