Brazil is experiencing one of the worst moments in its republican history. Accusations of corruption in the Federal Legislative and Executive branches—and also in some states—have led to the discrediting of these institutions, the rejection of the political class by citizens, and are exacerbating the ethical and political legitimacy crises, undermining the very pillars of the democratic rule of law.
Despite the current state of national political life, the Federal Executive Branch, with the support of part of its support base in the National Congress, insists on maintaining the vote on labor and social security reforms, arguing that they are essential for job creation and guaranteeing current and future retirements.
Contrary to what was done during the reforms to the Civil Code and the Code of Civil Procedure, whose implementation did not dispense with the establishment of committees of notable figures and broad debate by society and both Houses of the National Congress, the labor reform—to name but only—affects not only substantive labor law, but is also contemplated in the field of labor procedural law, the science that governs the instrument that enforces workers' rights.
According to the assessment of several entities and figures linked to the world of labor law, if maintained at its current level, this reform runs counter to the age-old struggles of workers and leads to an unequivocal setback, contradicting the implicit constitutional principle of prohibiting social regression, enshrined in the 1988 Federal Constitution by the principles of the social and democratic rule of law, human dignity, maximum effectiveness and efficacy of the norms defining fundamental rights, legal security and the protection of trust, the social value of work, and the appreciation of human labor. It weakens the union system and weakens the Labor Courts.
To focus on a few controversial points that will cause a setback in substantive and procedural labor rights—and therefore some of questionable constitutionality—the following are cited: a) the prevalence of negotiated rights over legislated rights; b) recognition of the statute of limitations after two years; c) pricing of non-pecuniary damages (which is not seen even in the field of civil law); d) outsourcing of core activities; e) permission for pregnant employees to work in unhealthy environments upon presentation of a medical certificate; f) restriction of the institution of free legal aid; g) elimination of ex officio enforcement when the party is not represented by a lawyer (a salutary procedure used in the Labor Courts since the entry into force of the CLT in the 1940s, and now adopted by the 2015 CPC).
All these points of the labor reform are being challenged by Anamatra through an online campaign to educate society and convince those who will decide on it in the appropriate forums.
Furthermore, these reforms will be the subject of issue no. 57 of this Journal, to which we invite readers to contribute to the debate.
This issue, on the other hand, still emphasizes the labor process from the perspective of the 2015 Code of Civil Procedure (CPC), a topic that will only be fully established in a few years.
To this end, it contains articles that address the labor process from the perspective of the new CPC and its institutions, such as the "surprise decision," theories of the burden of proof,
appeals for clarification, and Normative Instruction No. 39/2016 of the Superior Labor Court (TST), as well as writings on substantive labor law and the prerogatives of the national judiciary. It also includes
selected judgments from the Superior Labor Court, Regional Labor Courts, and Labor Judges.
Enjoy your reading.
Fall 2017.
The Editorial Board