Labor laws changed after the reform, but TST precedents do not

The labor reform and the outsourcing law, both from 2017, complete five years in force and, for those who defend them, they were important updates of the rules to be followed in the relations between companies and employees.

The changes brought by them, however, have not yet reached the majority understandings of the labor Judiciary, according to the conclusion of an analysis carried out by the CNI (National Confederation of Industry) of precedents and jurisprudential guidelines from the TST (Superior Labor Court).

This does not mean, in practice, that judges and labor judges are making decisions based on outdated guidelines, or that they are divergent from the new legislation.

However, says Sylvia Lorena, executive manager of labor relations at CNI, maintaining these precedents can leave a perception of legal uncertainty and “cause problems with the most unsuspecting.”

“A small business owner who decides to enter the TST website to consult on the subject and see this summary, he will think it is still valid”, he says.

For the CNI, 29 precedents need to be cancelled. The number corresponds to about 10% of the majority understandings of the TST. The confederation also analyzed the jurisprudential guidelines, as the agreements closed with a smaller quorum are called.

Lawyer Luiz Guilherme Migliora, a partner in the labor area at Veirano Advogados, says that the existence of a precedent should not be a problem, as it only captures the understanding of the majority of the court at the moment.

When there is a new legislation, it is natural, evaluates the lawyer, to wait for the summary dealing with that matter to be reviewed. On the other hand, he considers it unlikely that an outdated summary has the power to generate divergent decisions in relation to the legislation.

“A precedent in force does not have the power of a law in force”, says the lawyer. “Yes, they can deceive [pequenos empresários], because, in fact, if there is a summary on the TST website that is in force, the tendency is for this to be understood as valid. But it’s a more specific thing,” he says.

Sylvia, from CNI, says that the analysis was produced with the intention of encouraging, at the same time, a provocation and a reflection on the subject. “Generally, the courts have been enforcing the law,” she says, “But you have a legal command [a lei] in one sense, and jurisprudence in another.”

In addition to the outsourcing and labor reform laws, the CNI raised judicial decisions from the Federal Supreme Court (STF) that closed an understanding as to the constitutionality or otherwise of certain matters. Recently, in August, the Superior Court invalidated a summary of the TST that provided for the payment of double vacations if there was a delay.

The Supreme Court understood that the penalty for vacation pay and the constitutional third is not provided for by law. Based on this understanding, the confederation concluded that Precedent 450 of the TST should be cancelled.

The CNI’s labor relations executive manager also highlights the legislative changes that deal with collective bargaining. “The pillar, the skeleton of the labor reform, was the valorization of collective bargaining, in the sense of privileging the negotiated over the legislated”, she says.

Matters with outdated precedents, according to the CNI

> Hours in intinere (travel time)

• The route taken by the worker to the workplace is the subject of four precedents and a jurisprudential guideline; they discussed commuting between the entrance and the workplace and also the use of a vehicle chartered by the employer.
• Reason for cancellation: O §2 of art. 58 of the CLT (Consolidation of labor laws) established that travel time, whether walking or in a company or own vehicle, does not count as a working day.
• Affected summaries: 90, 320, 429 and OJ 36

> Outsourcing

• The possibility of companies hiring workers through another company was the subject of a summary, a jurisprudential orientation and was discussed in the STF.
• Reason for cancellation: at Laws 13,429 and 13,467 allowed the outsourcing of all activities of a company, including the main one; the STF recognized the possibility.
• Affected summaries: 331 and OJ 383

> Temporary stability

• The TST established that the fixed-term contract did not remove from the pregnant woman the right to job stability, which is valid from the confirmation of pregnancy until five months after delivery.
• Reason for cancellation: The STF established, in general repercussion, the understanding that stability for pregnant women is linked to the possibility of having a dismissal without just cause, something that does not exist in the contract for a fixed term.
• Affected summary: 244

On the subject, the CNI’s conclusion is that the changes brought about by the reform make five precedents and three jurisprudential guidelines outdated.

Precedent 277 dealt with the ultraactivity of collective norms, which is the extension of the terms of an agreement or convention until a new negotiation is concluded. As a result, benefits granted in an agreement with an initially expected duration of two years could end up being incorporated into the employment contract.

In addition to complying with the provisions of the CLT since the labor reform (it will not be allowed to stipulate a duration of collective agreement or collective bargaining agreement of more than two years, being ultra-active), Precedent 277 was considered unconstitutional by the STF.

Labor judge André Dorster, from the TRT-2 (Regional Labor Court of the 2nd Region, São Paulo), explains that the precedents of the TST are a parameter of interpretation for the courts and judges of first instance on certain matters.

In his opinion, a review of the precedents considered superseded by new laws would be interesting, but not indispensable. “But it would be really important because it would bring legal certainty and avoid noise. It is a situation that could generate misinterpretation by the addressees of the law. A layman may not understand that there has been a change.”

The problem is that the labor reform itself made the revisions and creation of precedents more complex. Article 702 of the CLT began to provide for the need for a vote of at least two thirds of the Full Court, if the matter has already been decided in an identical way unanimously in at least two thirds of the classes in at least ten different sessions. in each of them.

In May, the TST declared the unconstitutionality of the two provisions created by law 13.467/2017, of the reform and that changed the rule for precedents. The case is still under discussion in the STF, but there is still no final decision.

The TST was contacted on Friday (30), but did not respond.