The New Brazilian Labor Pre-Proceeding Claim
At the end of March, the Brazilian Superior Council of Labor Justice (CSJT) implemented an innovative methodology for resolving labor disputes, through the passage of CSJT Resolution 377/2024. The Pre-Procedural Complaint (RPP ) allows employers and employees to execute settlements in the Labor Courts directly, without the need for a prior out-of-court agreement, or the existence of an ongoing labor lawsuit.
Background
Out-of-court agreements have always existed, but prior to the 2017 Labor Reform, those involving labor matters generated enormous legal uncertainty for employers, even in cases when the parties were advised by lawyers, or such as when the negotiation involved a well-qualified employee .
This uncertainty existed because employers didn't know how the Labor Court would respond if the ex-employee were to file a labor lawsuit after signing an out-of-court agreement.
In order to provide greater legal clarity and encourage settlement s, the 2017 Labor Reform introduced the voluntary jurisdiction procedure for the ratification of out-of-court settlements (the “HTE") through which employers and employees – represented by separate lawyers – can request ratification of the terms and conditions they agreed to out of court.
The HTE has been used frequently, and satisfactorily, by employees and employers seeking to resolve their conflicts without taking the discussion to a labor claim or similar procedure.
Despite the HTE’s success, the CSJT issued the new CSJT Resolution 377/2024, with the intention of further promoting the so-called Multiport System by regulating the established pre-procedural mediation, in line with the need to accommodate the Brazilian Judiciary to the Sustainable Development Goals advocated by the United Nations in Agenda 2030, integrated into the Judiciary by Goal 9 of the National Council of Justice (CNJ).
Applicable Rules
Since 2010, mutual conflict resolutions have been regulated by CNJ Resolution 125/2010, which established the National Judicial Policy for the Adequate Treatment of Conflicts of Interest, through which only minor issues were addressed, such as the Judicial Centers for Conflict Resolution and Citizenship (CEJUSCs) being responsible for pre-procedural mediations.
Despite CNJ Resolution 125/2010 having been in place for more than a decade, there were no specific regulations for pre-procedural mediations in the Labor Courts. This is because the CSJT, in issuing CSJT Resolution 288/2021, limited itself to structuring the procedures applicable to the Judicial Centers for Consensual Methods of Dispute Resolution within the Labor Courts (CEJUSCs-JT), without actually regulating pre-procedural mediations.
Given this scenario, which lasted until March 22, 2024, when CSJT Resolution 377/2024 was issued, the courts applied their own rules to the subject. These rules, though they set a groundwork for pre-procedural mediation, were not uniform, leading to doubts, and a subsequent reduction in the effectiveness of the institute, which until now has been little-used by the Labor Courts.
The New RPP
With CSJT Resolution 377/2024, which is already in force, the party interested in the mutual resolution of a labor dispute, in order to start a pre-procedural mediation, must submit an RPP in the electronic processing system (the “PJe”), which will be distributed to one of the Labor Courts, or – if in the second degree – to an appellate court justice or to a convened judge , who must forward it to a CEJUSC-JT unit.
Upon receipt of the RPP by the CEJUSC-JT, negotiations will be conducted by the parties with the participation of a magistrate and, if successful, the agreement will be ratified. If no agreement is reached, the RPP will be filed.
Differences Between Out-of-court Settlement and Pre-procedural Mediation
Both ratification of out-of-court settlements and negotiating a settlement in the context of pre-procedural mediations through RPPs, produce the same results, granting parties the same legal certainty. On this point, CSJT Resolution 377/2024 even provides that an RPP – when related to an individual dispute – will be converted into an HTE once it has been ratified, becoming an unappealable judicial enforcement order.
Despite this similarity, there are differences that should be pointed out, to select the best procedure for the mutual resolution of a conflict .
The main distinction lies in the fact that the HTE presupposes prior consensus between parties, since the judge is limited to ratifying or refusing to ratify an agreement that has already been signed. Pre-procedural mediation, on the other hand, is used to negotiate the terms and conditions of an agreement in the Labor Court, with the participation of a magistrate.
In addition, the formalities required in HTE—including the obligation to comply with the requirements of article 840 of the CLT, to pay costs and to appoint lawyers—are not required in pre-suit mediation. Despite this, it is strongly recommended that employers and employees enter into pre-procedural mediations duly assisted by their lawyers, who have the necessary technical capacity to defend the interests of their respective clients.
Final Considerations
The regulation of pre-procedural mediation, with the establishment of the RPP, reflects a significant evolution in the way the Labor Courts have approached the resolution of labor disputes.
This movement, in addition to lightening the load on the courts, shows an effort to make access to justice more agile, economical and accessible, prioritizing dialogue in the management of disagreements and the amicable resolution of disputes.
To that end, the RPP is an interesting alternative to the HTE in resolving conflicts, which companies should consider in order to avoid judicializing disputes that could otherwise be resolved more quickly and more economically.
The Employment and Benefits team at Tauil & Chequer Advogados, in association with Mayer Brown, is available to help companies clarify any doubts related to this issue.
The preparation of this Legal Update included the contribution of Lucas Figueira Porto.
