By Rafael Mello – 06/22/2018

Much has been said about the intertemporal application of the new procedural rules established by 13,467/2011, with discussions revolving around the application, or not, of such procedural rules immediately to the proceedings, regardless of whether the action was filed before the aforementioned law came into effect, that is, before 11/11/2017.

We understand that procedural rules are applicable immediately after the law comes into effect, as clearly stated in article 14 of the Code of Civil Procedure and within its limits, obviously. Let's see:

Art. 14. The procedural rule will not be retroactive and will be immediately applicable to ongoing proceedings, respecting the procedural acts carried out and the legal situations consolidated under the validity of the revoked rule.

One of the points that generated controversial discussions is the rule in article 843, § 3 of the CLT, which authorizes the employer to be represented in labor proceedings at hearings by a non-employee representative.

Art. 843 – The claimant and the defendant must be present at the trial hearing, regardless of the attendance of their representatives, except in cases of Multiple Claims or Compliance Actions, when employees may be represented by the Union of their category.

§ 1º The employer is authorized to be replaced by the manager, or any other employee who has knowledge of the fact, and whose statements will be binding on the proposer.

(…)

§ 3 The employee referred to in § 1 of this article does not need to be an employee of the defendant.

As we have seen, there was resistance from the Judiciary and some lawyers, who began to argue that this rule could only be applied to lawsuits filed after 11/11/2017 (when Law 13.467/2011 came into effect). In other words, for cases filed before the aforementioned law, the company's representation in hearings after 11/11/2017 could only be done by an employee representative, as was the rule before the labor reform came into effect and was also included in summary 377 of the Superior Labor Court.

There was even consideration of amending summary 377 of the Superior Labor Court to include this understanding in the consolidated understanding of the aforementioned Court, but the session that was to deliberate on this amendment was prudently suspended.

With the advent of the publication of normative instruction no. 41 of the Superior Labor Court, at least the issue related to the representation of companies in hearings by “non-employee” representatives seems to have been overcome, preventing inconsistent and legal decisions from restricting the right to full defense and due legal process of companies sued in the Labor Judiciary.