Law No. 13,467, of July 13, 2017, known as Labor Reform, has not yet been discussed by the Courts, as it will only come into force on November 11, 2017.
Nevertheless, Judges, Superior Court Judges, Justices and even Labor Prosecutors and Auditors met at the beginning of last week (10/09/2017 and 10/10/2017), to discuss the implementation of the reform.
At this meeting, held at the National Association of Labor Justice Magistrates ("ANAMATRA"), all main changes provided in the legislation were deeply criticized and the Labor Magistrates were categorical in stating that several points of the reform will not be applied and/or considered valid by the judges, on the grounds of noncompliance to international, constitutional and democratic principles.
For Mauricio Godinho, Justice of the Superior Labor Court ("TST"), if the changes in the Labor Reform are fully applied, the Brazilian people will no longer have access to Labor Courts, which, in his opinion, would represent a direct offense to the principle of access to justice.
We have summarized the main topics discussed at this meeting, as well as the position the majority of Labor Magistrates on these matters.
Literal Rule – Judge's motivated free conviction
The plenary rejected the idea that judges should only apply the literal rule without interpreting the statutes meaning, compromising the free motivated conviction of each judge reviewing disputes impartially and technically, according to constitutional and legal principles, to reach the concrete will behind the statutes.
Therefore, for Labor judges, the new law will not be applied according to is literal meaning, but rather through the interpretation of each judge.
This is a new work modality, through which services may be provided by the hour, day or month, as long as periods of service alternate and are not continuous.
The plenary, however, accepted the thesis that this type of recruitment cannot be applied to all types of activities, but only for those that do not operate every day and are intermittent, such as party venues that operate only on weekends.
Prevalence of agreements over legislation
The Labor Reform provides that agreement should prevail over legislation, so that collective-bargaining agreements (negotiated between companies and unions) and collective labor agreement (between employers' and employees' unions) should prevail over the Consolidation of Labor Laws (CLT) in some points.
However, for the plenary, many of the provisions that would allow for flexibility, in Article 611-A of the new CLT are unconstitutional, such as the organization of the working hours, remuneration for productivity and the framework of the level of health-hazard risk, so that the judges will only apply the collective labor agreement or collective-bargaining agreement when these are more beneficial to the employees.
With the Labor Reform, through individual employment agreements between employee and employer there can be 12-hour work shifts and 36-hour rest periods.
However, for Labor judges, that could only be established in a collective agreement, as provided for in article 7, item XIII, of the Federal Constitution ("CF"), because this regards workers' health.
Attorney's Fees and Expert fees borne by the losing party
Law No. 13,467, dated as of July 13, 2017, provides that both parties will owe attorney's fees to the winning party's attorney.
However, plenary approved a thesis according to which this rule will not be applied to ongoing labor claims, due to the principle of causality, since expected costs and risks are assessed at the time of filing of the claim.
In addition, the judges understood that attorney's fees and expert fees will not be due by claimants who have filed in forma pauperis, because that would violate the provisions of article 5, sections XXXV and LXXIV of the CF.
Payment of damages for mental distress
With the Labor Reform, damages for mental distress will be calculated based on the employee's salary, limited to 50 times that amount.
However, the judges understand such a provision is unconstitutional, as it is the government's duty to offer comprehensive and integral relief when a person's moral health is damaged.
In addition, the meeting of Labor judges also dealt with outsourcing a company's core activities – provided for in Law No. 13.429 /17.From the analysis of this law, there is no provision according to which all the same benefits offered to the employees of the hiring company should be offered to the outsourcing company, but it provides that outsourced employees have the right to enjoy the same meal services and ambulatory care the hiring company's employees have.
However, the understanding of the Labor judges differs from the legal provision; for them, all outsourced employees should have the same benefits the direct employees of the hiring companies have.
Therefore, from the analysis of the main theses that will be adopted by Labor judges, what can be seen is that, although the intention of the legislator was to modernize labor relationships to match the current situation that the country is in and, consequently, increase the number of job opportunities, it is certain that the Labor Reform is generating great controversy and, in fact, we will only be certain of the extent of its application when the first judgments are issued by the courts.
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