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São Paulo – Who Filed a complaint in the Labor Justice before November last year and has already lost the action after the entry into force of the labor reform is subject to the new rule that requires the loser to pay fees to the lawyer of the p arti
The Normative Ordinance 41, a resolution issued on the 21st by the Superior Court of Labor (TST), provides decision-making parameters to put an end to the legal uncertainty that has arisen. since the entry into force of the labor reform.
"The TST initiative was intended to ensure stability in procedural legal relationships, although it is not binding and does not compel the other," Roberta explains. de Oliveira Souza, lawyer specializing in public law, labor law and procedure
The document does not deal with matters relating to labor law, such as the payment of overtime, vacation, moral damages, among others, but d & # 39; 39; a series of issues related to the application of work reform over time involving procedural issues such as expert fees and expert fees, fees and claims settlement
it is a position that comes from the highest instance of the Brazilian Labor Court, that is, "is not mandatory, but signals the positioning of the TST, which, s & # 39; It is obtained in some degree of recourse, will reverse decisions that do not sui not the guidelines set out in this normative instruction, "says Roberta
1. As for the sucumbencial fees – those owed by the loser of the action to the winner's lawyer – will only have to pay them who entered with the claim after November 11, 2017. [19659004] 2. Another fee controversy is the new wording of Section 790-B, which deals with the requirement to pay the appraisal fees by the losing party (succumbing to the purpose of the investigation), even if it is beneficiary of the compensation.
The text of the labor reform only defined when the recipient of free legal aid has not received credit for this expense, even if in another case it is the Union will pay the amount corresponding to the work of the expert by means of the expert fees.
In this context, TST gave the same direction as the losing fees, namely that the new rule does not apply to proceedings commenced before November 11, 2017.
a new rule would imply a heavy burden for the court that did not badume this risk before choosing to conduct the investigation, which would violate the principle of non-surprise and causality, "explains Roberta de Oliveira Souza. . Labor reform stipulated that work demands must contain a certain specific claim, indicating the value of each of them.
Novelty is in the art. 840, § 1 of CLT and the TST document establishes that this requirement, referred to in the legal means of "initial liquidation" is made only for prosecution filed after entry into force. force of the labor reform. [19659004] And yet, the value of the case implies that the estimate of the value of each query, there is no need for its exact indication nor the presentation of A spreadsheet according to TST understanding. "This has a significant impact on labor lawsuits, because if the amount indicated would limit execution and the lawyer or accountant would miss the calculations for less, the plaintiff would not be entitled to the exact amount that belongs to it ", explains Roberta
4. Costs
According to the new wording of article 789 of the CLT, the costs related to the process of knowledge – the stage at which the evidence is produced, the audits of the parties and of the witnesses – will be based on 2% – (observing the minimum value of 10.64 reais) and a maximum of four times the maximum limit of the general system of social security (this last part is the great innovation brought by the reform)
In January 2018, the ceiling of the pension fund was 5 645.80 reais, that is to say that the maximum amount is currently R $ 22,583.20. According to the TST, the new rule applies to decisions setting the costs incurred from the entry into force of the reform.
5. Litigation of Bad Faith and Fine
Who enters into a trade union action and takes an unfair position or acts in order to distort the process, to lie, to cause an incident manifestly unfounded, interpose an appeal to delay the process, acting without good faith and in an unethical manner is considered a "bad faith litigant".
The labor reform stipulated the payment of a fine for anyone who is taken in bad faith and the amount stipulated is greater than
In addition, the bad faith pleader will be obliged to indemnify the other party for damages suffered, in addition to the attorney fees and all expenses that the party thwarted. But all this applies only to prosecutions commenced after November 11, 2017.
6. Intercurrent prescription Although there has been a controversy between the overturns issued by the TST and the Federal Supreme Court (Summary 327) regarding the intercurrent prescription – which occurs when the person loses the chance of because of their inertia, they claimed their right during the proceedings – the labor reform has began to predict this institute in the art.
The Reform established that the intercurrent prescription should be made within two years, from the day the executor (creditor of the action) ceases to comply with a decision judicial in the process of execution, and this statement may be "According to the expert
" Faced with the Normative Instruction of the TST, the flow of the intercurrent prescription is counted from the non-compliance of the judicial decision during the execution, provided that this order is registered after the entry into force of the Reformation, from November 11, 2017 ", explains Roberta.
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