By Rafael Mello

Law 13,467 of 07/13/2017 established a period of vacatio legis of 120 days in its article 6, which means that the labor reform will come into effect on 11/11/2017.

As has been reported, the labor reform proposed by law 13,467/2017 contains numerous items to change the CLT, which is why we are beginning with this text a series of articles that will specifically address the most relevant topics.

Without prejudice to other points and future texts to be published, we highlight below some items of the reform that have a practical nature, accompanied by comments.

• Labor Exemption – non-integration of usual benefits and bonuses into salary

The change in the concept of salary is one of the most profound brought about by the labor reform through the See below the comparative table between what was provided for in article 457, §1º of the CLT and the new article 457, §§ 1º, 2º and 4º of the CLT:

The new law makes absolutely clear what salary is and what should be considered for the purposes of levying labor charges, as well as expressly excluding the monthly limit for the worker's cost of living allowance and bonuses paid out of mere generosity.

• Working hours – teleworking

The new law 13.467/2017 inserted item “III” in article 652 of the CLT, excluding from the regime of control of working hours and payment of overtime, interval overtime, night shift allowance and other additional payments and repercussions resulting from extraordinary working hours, those workers subject to the teleworking and home office regime. Teleworking is regulated in the new Chapter II-A of the CLT (articles 75-A, 75-B, 75-C, 75-D and 75-E of the CLT), and must be expressly stated in the individual employment contract, in addition to being subject to special regulation in a collective agreement (art. 611-A of the CLT).

That is, the rule aims to avoid, once and for all, the discussion of overtime and remote work schedule control for those employees who, in fact, work without any work schedule control or physical presence. In theory, the understanding of some Courts that the mere possibility of work schedule control – in the case of external work schedule – would eliminate the exclusion provided for in article 62 of the CLT is hereby rejected.[1].

• Working hours – 12×36 shift

The new legislation expressly excludes the need for collective bargaining or obtaining prior leave to implement the 12-hour work shift for 36 hours of rest (12×36 shift). The new rule puts an end to the old debate about the aforementioned shift, its benefits and disadvantages, and the bureaucratization of its implementation.

• Working hours – Compensation scheme and Time Bank

The system of compensation for overtime within the same month, whether by written or tacit individual agreement, is valid. With regard to the time bank, the new legislation allows its establishment by written individual agreement, with compensation of the hours entered in the bank within a maximum period of 6 months. Finally, it was stated that the habitual extrapolation of the working day does not invalidate the agreement for compensation of working hours or the time bank.

• Vacation splitting

The law authorizes the division of vacations into up to 3 periods, one of which must contain at least 14 consecutive days and the others cannot be less than 5 consecutive days. There is no need to prove an exceptional situation to apply the division of vacations.

• Employees with higher education with a salary equal to or greater than R$11,062.62

The sole paragraph of article 444 of the CLT allows employers and employees with higher education and salaries equal to or greater than R$ 11,062.62 to freely decide on the matters provided for in article 611-A of the CLT.

In short, these employees may directly agree with the employer on working conditions, working hours, time banks, home office work, bonuses, profit sharing and results, with such provisions prevailing over what is stipulated by law. Furthermore, according to article 507-A of the CLT, these employees may agree to an arbitration clause to resolve disputes in arbitration.

• Annual settlement term

A practical innovation, the creation of the annual settlement agreement is a tool that can help reduce lawsuits and strengthen legal certainty in labor relations. The discharge agreement is only effective for the amounts expressly specified in this agreement and provided that it is signed with the assistance of the employee's union.

• Out-of-court settlement

This is a point that has always been present in the doubts of employers and employees. The out-of-court agreement is now provided for by law and must be submitted for approval by the Judiciary.

The practical aspects highlighted above do not exhaust the changes implemented by law 13,467/2017, but they exemplify its scope.

It is important to keep in mind that some sectors of society will maintain a position contrary to law 13,467/2017 or, at least, to some of its items.

In fact, we can mention among those who partially or fully oppose the labor reform, some members of the Labor Court, Unions and members of the Labor Prosecutor's Office. The arguments against the reform or its items range from the reduction or limitation of previously acquired social rights to its unconstitutionality.

A consistent example of such opposition is technical note no. 5 of April 17, 2017, formally issued by the Public Ministry of Labor and signed by the Chief Labor Prosecutor Dr. Ronaldo Curado Fleury.[2]. Entities representing labor judges, labor prosecutors and labor inspectors also formally positioned themselves against the unconstitutionality and unlawfulness of the labor reform through a technical note[3].

We therefore have, regardless of the reasons for and against labor reform, an indefinite path to be followed until the debate matures and the desired legal certainty is achieved.

Therefore, the opportunities and benefits arising from labor reform must be implemented by employers through specialized legal advice and attentive to the specificities of the activity and reality of current labor relations.

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[1] APPEAL. ELECTRONIC PROCESS – OVERTIME. CONFIGURATION. EXTERNAL WORK. (…) the mere possibility of controlling working hours is enough to rule out the exception provided for in art. 62, I, of the CLT. Appeal for Review not accepted. (…) (TST – RR: 1521820135040661, Rapporteur: Márcio Eurico Vitral Amaro, Judgment Date: 05/20/2015, 8th Panel, Publication Date: DEJT 05/29/2015)

[2] http://portal.mpt.mp.br/wps/wcm/connect/portal_mpt/c6d5ffb6-5285-4f96-87f3-6a02340ded33/notatecnica_76-2017.pdf?MOD=AJPERES

[3] https://www.anamatra.org.br/files/Nota-tcnica-Conjunta-Reforma-Trabalhista—aspectos-de-constitucionalidade-e-antijuridicidade.pdf