2 Years of the Brazilian Labor Reform
A new stage for individual and collective labor relations in Brazil began on November 11, 2017, when the Labor Reform introduced by Law No. 13,467, came into force. It sought to facilitate job creation and to reduce bureaucracy in the labor routines and thus foster the economy.
After two years of practice of the legislative innovations, this article intends to take stock of what has already been validated and is being applied, and the controversial points that still need to be jointly built by employers, workers, unions and government.
A first undisputed effect brought by the Labor Reform was the decrease of the number of new lawsuits submitted to the Labor Courts. Indeed, due to the stricter procedural rules in force since 2017, workers and employers have come to terms to prepare the respective procedural documents in a more cautious and careful manner.
Among the topics brought by the 2017 Labor Reform and generally adopted, we mention the following: the regulation of home office; possibility of dividing the holidays in three periods; possibility of terminating the employment by mutual agreement; end of the need for either the Union or the former Ministry of Labor and Employment to ratify the termination of employment.
These rules can be safely adopted with the purpose of meeting the specific demands of companies who wish to adjust the labor legislation to the requirements and dynamism of the modern labor market.
On the other hand, some of the Labor Reform innovations that questioned the old pattern attributed to individual and collective labor relations were submitted to the Judiciary for confirmation as to the validity and compatibility with the legal system.
Among the issues already decided by the Supreme Federal Court (STF) is the payment of the union contribution and the work of pregnant women and nursing mothers in unhealthy environment. Regarding the first theme, the tendency is for the Judiciary to validate only the union contributions previously, expressly and individually authorized by the worker. With regard to the second theme, the understanding of the STF is to prohibit the work of pregnant women and nursing mothers in unhealthy workplaces, except upon medical authorization.
Notwithstanding, the STF has yet to decide on a number of issues, which are subject of several Direct Unconstitutionality Actions (ADIns). Among them, we highlight: the regulation of intermittent work; the setting of the 12×36 working regime by individual work agreement; the indemnity payable in consideration for moral damage; the regulation of collective dismissal; the obligation to pay succession fees and free justice; the correct index of correction of the labor debts; as well as the parameters that the Labor Courts must adopt to edit and revise their respective precedents.
Other issues that still arise debate are: the possibility of reducing the meal break by Collective Bargaining Agreement without the need for authorization from the former Ministry of Labor and Employment (MTE); the prevalence of the negotiated over the legislated (a divergence that even caused the TST recently to suspend all trials related to this subject); the extent of the release granted by the worker in an out-of-court settlement signed by him and subsequently ratified in court.
An important fact to be mentioned in the present two-year review of the Labor Reform is the recent edition of the Economic Freedom Act. This statute is in line with the principles of the 2017 Labor Reform as it continued to simplify labor relations and brought innovations such as exemption from working hours control for companies with fewer than twenty employees. Conversely, the wide possibility of work registration by exception brought by the Economic Freedom Act is a controversial point given the current position of the Labor Courts on the matter.
It can be concluded that the 2017 Labor Reform is still under construction. This fact proposes to all parts of collective and individual labor relations, necessarily together with the Federal Government, the interesting challenge of directing the next steps of this adaptation to a new legal reality towards a more prosperous and value-generating society for both workers and employers.