In 5 years of labor reform, processes go back to 1992 level

After the labor reform, the volume of cases filed in the first instance by the country dropped to the same level as 30 years ago. After five years of validity of the new rules of the Consolidation of Labor Laws (CLT), the reduction in judicial disputes is one of the main marks of the changes promoted during the Michel Temer government (MDB), alongside the flexibilization of rights. Today, the text faces resistance from president-elect Luiz Inácio Lula da Silva (PT).

Effective since November 11, 2017, the changes impacted the day-to-day work of the Labor Court by imposing stricter rules for filing lawsuits. Among the innovations of the most profound reform of the CLT since 1943 are the payment of attorney and expert fees in the event of defeat, the definition in the initial petition of the amount requested by the employee and the ratification of extrajudicial agreements in court.

Data from the Superior Labor Court (TST) illustrate this turnaround. The year 2021 closed with 1.550 million new shares in the courts, an amount close to that of 1992, with 1.517 million. Until September this year, the volume is 1.263 million.

For Ana Luiza Fischer, labor judge, former coordinator of the Higher Labor Studies Group (Gaet) of the Jair Bolsonaro (PL) government and one of the writers of Temer’s reform, the instruments of the new law produced “a certain moralization of litigation ”. “There is consensus even among critics of the reform that this reduction was due to the entry into force of the new law”, she says.

expressive numbers

In 2017, 2.648 million cases were filed in the first instance. The year 2016 recorded the record of the historical series, which began in 1941, with 2.756 million new shares.

Comparing the year before the reform came into force with the closed data for 2021, there is a 43.7% drop in the number of lawsuits filed. In the meantime, the economic crisis caused by the covid-19 pandemic is added.

For Antonio Carlos Frugis, a partner at Soto Frugis Advogados, a decision by the Federal Supreme Court (STF) in October last year on the gratuitousness of justice represented a setback.

“When it judged that the employee benefiting from free justice will not actually pay the fees of the opposing party nor the expertise, the Court brought the status quo that existed before the reform. Today, there is already an example of a claimant earning BRL 5,000 and easily asking for BRL 500,000, which was seen in the past,” he says.

In five years, there were 35 direct actions of unconstitutionality (ADIs) against 12 changes – four were judged. “The STF has valued the labor reform, giving quick answers to the questions presented. Considering the broad competences of the STF, labor issues have been judged with the highest possible priority”, says Maria Cristina Peduzzi, minister and former president of the TST.

There are those who consider the role of the Court in the trials. “The Supreme Court is not composed of a majority of ministers who come from the labor area. In the last five years, we have not had any interest in addressing labor law matters in the plenary. Now it happens with the minister Rosa Weber in the presidency”, says Ricardo Calcini, professor of Labor Law at FMU. “On the most sensitive issues, which affected all workers in the country, however, the ministers gave priority.”

Coming from the TST, Weber put on trial in the virtual plenary from yesterday until the 21st the intermittent work (the worker is called according to demand). Rapporteur of the action, Minister Edson Fachin voted for unconstitutionality, and the President of the Court has already followed the colleague’s understanding.

new discussions

The number of challenges to the reform in the STF reflects the degree of dissatisfaction of critics of the CLT update. In the presidential campaign, Lula even promised the repeal of the text, softened the speech and started talking about revision. The rejection remains in the transition cabinet.

Nelson Mannrich, retired professor at USP and partner at Mannrich e Vasconcelos Advogados Associados, now defends what he calls further advances. “It is necessary to look to the future. Union reform, with the implementation of freedom of association, is urgent. The outdated system of union unity (one union per territorial base) is still in force in Brazil. The regulation of activity on digital platforms (such as Uber) is another topic that should be further discussed and provided for in labor legislation. This form of work does not conform to the employment relationship provided for in the CLT. Another topic that should be considered: alternative ways of resolving labor disputes”, says Mannrich.

Congress tends to resist a deeper revision of the rules

President-elect Luiz Inácio Lula da Silva wants to have a broad and tripartite discussion (bosses, unions and government) before proposing changes to labor rules, a model that has been tested in his two terms in the Presidency. If he opts for a broad counter-reform, however, Lula must face resistance from Centrão in Congress.

Among the formulators of the government program’s guidelines, the strengthening of unions is central, in addition to changes in outsourcing rules, intermittent work (for hours of work), and the guarantee of minimum rights for informal workers, among them those of applications .

During the campaign, after the noise provoked around the promise of a “repeal” of the reform, Lula and allies adapted the speech for a revision of points of the text.

In the campaign, Lula hired vice president-elect Geraldo Alckmin (now coordinator of the transitional government) to reassure businessmen. He assured that the proposed changes would not revise the principle of agreed upon legislation, the basis of the reform, nor would they resume the union tax.

Researcher Fernando de Holanda Barbosa Filho, from Ibre/FGV, believes that the renovation was very well done. “It came to solve problems that we had negotiated over the legislated and provided what the legislation did not have, which was flexibility throughout the employment relationship”, he says. For him, the reform should permanently reduce unemployment, since the lack of flexibility meant that in crises the way out was dismissal.

Marcelo Manzano, a researcher at the Center for Union Studies and Labor Economics at the Unicamp Institute of Economics, which is also a member of the Perseu Abramo Foundation (from the PT) and collaborated in the discussions of Lula’s program, one of the challenges to be faced in the reform is the “strange figure” of intermittent work. “It means that the worker is formally employed at company X, but there is no guarantee that the next week will have working hours that guarantee a minimum wage to sustain life”.

The information is from the newspaper. The State of São Paulo.