Brazil: Judges Assess The Application Of The Labor Reform

Last Updated: 2 November 2017
Article by Priscilla Carbone and Débora Terra

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.

Intermittent work

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.

12×36 Shifts

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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions