NEWSLETTERS, ARTICLES AND MEDIA
NEWSLETTERS
Hightlights
In this edition we highlight the understanding of the 3rd panel of TRF of the 3rd region, which upheld the award of the 1st Federal Court of Santo André granting the Writ of Mandamus filed by a worker, to declare the unenforceability of IT on vacation and one third on vacation paid.
Another important piece of news regards the understanding of the 4th Panel of the Superior Labor Court that understands that the lateness of the attorney in the hearing (with no detriment to the stage of production of evidence) does not justify the application of default.
Good reading!
Legal Bulletin
LABOR LAW
Franchisor does not have secondary liability for debts of franchisee pursuant to the understanding of the 5thPanel of the TST.
“INTERLOCUTORY APPEAL. SECONDARY LIABILITY. FRANCHISE CONTRACT. VIOLATION TO ARTICLE 2 OF ACT N. 8.955/94. CONFIGURATION. JUDGMENT. In view of a possible violation to article 2 of Act n. 8955/94, the processing of the interlocutory appeal is a measure to be imposed. APPEAL.SECONDARY LIABILITY. FRANCHISE CONTRACT. INEXISTENCE. VIOLATION TO ARTICLE 2 OF ACT N. 8.955/94. CONFIGURATION. JUDGMENT. Under the interpretation of article 2 of Act n. 8955/94, the franchise contract entered into between the franchisee and the franchisor deviates from the hypothesis of outsourcing. In such situation, the franchisee is free to manage its business and hire its own employees assuming the risks of the operation, and, although there is, on the part of the franchisor, an instruction and transmission of technology, there is no direct interference in the businesses of the franchisee. The inspection existing is minimum, only to protect the trademark transmitted. Thus, there is no need to talk about provision of services among such companies, either on secondary liability for the labor claims. Court Precedents. Appeal acknowledged and granted. (TST-RR-1170-78.2011.5.03.0077. Judge Rapporteur: CAPUTO BASTOS. Trial Date: 24.8.2014. 5thPanel. Publication Date: 10.10.2014).”
CIPA member who refused to return to work cannot obtain substitutive compensation.
“APPEAL. STABILITY.CIPA MEMBER. REFUSAL TO RETURN TO WORK. WAIVER TO EMPLOYMENT GUARANTEE. In the hypothesis there is no violation to article 10, II, “a”, of ADCT, because theright to provisional employment guaranteedid not fail to be recognized, but the waiver to the guarantee wouldhave occurred againstthe refusal of the Plaintiff to resumehis functions offeredby the employer. Appealnot recognized. Exception from understanding of the Judge Rapporteur. (TST-RR-845-51.2011.5.02.0362. Judge Rapporteur: MARCELO LAMEGO PERTENCE. Trial Date: 10.1.2014. 5th Panel.
LABORPROCEDURE
The 4th Panel of the Superior Labor Court that provides that the lateness of the attorney in the hearing does not justify the application of default, since it did not imply in prejudice to the stage of production of evidence.
“APPEAL. LATENESS TO ATTENDE THE HEARING. EFFECTS.I. Despite the wording of Case Law Instruction n. 245 of SBDI-1 of this Court in the sense that \"there is no legal provision tolerating delay by the party to attend the hearing,\" This Court has repeatedly decided that small delays not causing prejudice to the procedural instruction do not justify the application of admission by the late party. Precedents. II. Appeal not recognized. (TST-RR-265500-36.2005.5.02.0046. Judge Rapporteur: FERNANDO EIZO ONO. Trial Date: 8.20.2014. 4thPanel. Date of Publication: 8.29.2014).\"
SDI-I reverts decision that ceased to judge the appeal in view of the disappearance of data from thermo sensitive paper referring to the payment of the costs.
“APPEAL GOVERNED BY ACT N. 11.496/2007. ABANDONMENT OF THE APPEAL. ELECTRONIC RECEIPT OF THE COLLECTION OF COSTS. THERMOSENSITIVE PAPER. The thermo sensitive paper used widely in business establishments, financial institutions, among others, is defined as \"paper impregnated with a solid mixture of dye and acid, in an appropriate matrix. When the matrix is heated above its melting point, the dye reacts with the acid; it changes to a colored form, which is maintained when the matrix becomes solid with sufficient velocity. Thus, this is not an ink printing, but thermal printing, and, exactly for this reason, it is extremely susceptible to fading over time due to weather, heat, moisture, plastic and chemical products in general. Nevertheless the diligence that shall always base the practice of its procedural acts, one cannot forget that the disappearance of the data from the thermo sensitive paper referring to the payment of costs occurred due to the time elapsed between the filing of the appeal and the judgment. Thus, one cannot attribute liability to the party for what it did not give rise. Furthermore, it should be taken into account the stamp affixed by justice server, which has public faith, verifying the existence of two documents, referring to the bank statement on thermo sensitive paper and DARF slip, with the name of the defendant, case number and the amount corresponding to the costs fixed in regional order, revealing, this way, the regularity of such document at the time of the filing of the appeal. If different, the stamp affixed on the receipt would be \"blank\", and the preliminary analysis of extrinsic assumptions made by the trial court would not have verified the preparation. Therefore, once the costs are available to the Union and collected by proper and regular slip, in the amount arbitrated in the regional order, as well as in the statute of limitations provided by law, the preparation is satisfied, and the conclusion of the Panel curtailed the right of defense of the appellant. Appeal recognized and granted. (TST-RR-127600-85.2007.5.04.0401 C/J PROC. N. TST-AIRR-1708-06.2010.5.04.0000. Judge Rapporteur: AUGUSTO CÉSAR LEITE DE CARVALHO. Trial Date: 10.30.2014. Subsection I Specialized in Employment Claims - SDI-1. Publication Date: 11.7.2014).”
CIVIL AND PROCEDURAL LAW
Maintenance of security interests despite the judicial transaction between insured and aggrieved third party
“CIVIL LAW. MAINTENANCE OF SECURITY INTEREST DESPITE THE JUDICIAL TRANSACTION BETWEEN INSURED AND AGGRIEVED THIRD PARTY. In civil liability insurance, the insured does not lose the right to compensation, in good faith and with integrity, who performs, without consent of the insurer, judicial transaction with the victim of a traffic accident (aggrieved third party), provided that there is no actual prejudice to the insurer.Indeed, § 2, of art. 787 of the CC determines that the insured, in the civil liability insurance, cannot, at first, recognize its liability, settle or admit, in or out of court, its fault in favor of the aggrieved party, unless there is previous and express consent of the insurer, because, otherwise, it shall lose the rights to security interest, being personally obliged before the third party, with no right to reimbursement of the expenses. However, as the legal standards are not isolated and suffer mutual influences, although defended, the recognition of the liability, admission of the suit or transaction shall not deprive the insured, who is in good faith and has acted with integrity, the right to indemnification and reimbursement, and the acts are only ineffective against the insurer (enunciations 373 and 546 of the Civil Law). The prohibition of the recognition of the liability by the insured before a third party must be interpreted according to the general clause of objective good faith provided in art. 422 of the CC, so that the prohibition imposed will be for bad faith conducts, that is, which harm the interest of the insured. Thus, if there is no proof that the transaction made by the insured and by the victim of a traffic accident was abusive, unfounded or unnecessary, but, otherwise, it is evident that the accident actually happened, and the deal was made on terms favorable to both the insured and the insurer, there is no reason to place the rule of art. 787, §2, of the CC in absolute right to deviate the reimbursement of the insured. REsp 1.133.459-RS, Judge Rapporteur Ricardo Villas BôasCueva, judged on 8/21/2014.”
TAX LAW
The Federal appellate judge NeryJúnior, of the 3rdpanel of TRF of the 3rdregion upheld the award of the 1stFederal Court of Santo André granting the Writ of Mandamus filed by a worker, to declare the unenforceability of the IT on vacation paid and one third on vacation. For the judge that accompanied the case law of the STJ, the payment of vacation not enjoyed due to employment is not subject to income tax. The Federal judge of the 1stcourt rendered an award confirming the provisional remedy that suspended the enforceability of the tax credit. The suit was submitted to necessary revision at TRF, without filing of appeal. The Federal Appellate Judge examined the assumptions of incidence of IT under Article 43 of the national tax code, the chances of the exemption of exaction of IT, provided in Article 46 of Act 8.541/92 and Article 39 of Decree 3.000/99. Nery denied the official remittance quoting precedent 125 of the STJ and other understandings of jurisprudence.
Articles
Articles (i) “A SUBSTITUIÇÃO DA TR NA ATUALIZAÇÃO DE DÉBITOS TRABALHISTAS\", prepared by lawyer Marcelo Maciel Kuriki, (ii) “ALTERAÇÕES TRAZIDAS PELA LEI Nº 12.873/2013 À LICENÇA MATERNIDADE” drafted by lawyer Érika Brandão Soares de Oliveira, (iii) “GRANDES GERADORES DE RESÍDUOS TEM NOVAS OBRIGAÇÕES EM SALVADOR” written by member Ana Carolina F. de Melo Brito and lawyer Anacarolina de Azevedo Ismerim Silva can be read on the websitehttp://www.trigueirofontes.com.br.
Trigueiro Fontes News
(i) In August 2014 the annual meeting of the members of Trigueiro Fontes Advogados was held, and Paula Leonor Mendes Fernandes Rocha, Rio de Janeiro branch, and Ana Paula Gonçalves Maia, Campinas branch, were elected members, in voting carried out on 10.7.2014.
(ii) The Executive Committee of the firm Trigueiro Fontes has a new composition. Members Henrique Soares Oliveira (President), Karyna Saraiva Leão Gaya and Manoel Duarte Pinto are now part of the committee.
(iii) The newspaper DCI published a news report on the new application of the Federal Revenue Service to facilitate the IT return. Henrique Silva de Oliveira member Trigueiro Fontes Advogados (Salvador branch) was interviewed on the matter.
(iv) Member Daniela Ruth Cabral Espinheira and lawyer Luiz Fernando Plastino Andrade (São Paulo branch) provided assistance, on 9.30.2014, at ASPI - Associação Paulista da Propriedade Industrial. The lecture “Invenções sob ou além do contrato de trabalho” was ministered by Mrs. Elaine Ribeiro do Prado and by the Appellate Judge of the TRT of the 2nd Region, Dr. Carlos Roberto Husek.
(v) Article of member Pedro Szajnferber de Franco Carneiro (São Paulo branch), \"A responsabilidade dos sócios e administradores pelo passivo ambiental\", was published in the CONSULEX magazine of September 2014 issue.
(vi) Members Juliana Oliveira de Lima Rocha, Daniela Ruth Cabral Espinheira and Carlos Rosemberg Fernandes (São Paulo branch) attended the event \"Relações Societárias e Trabalhistas nas Sociedades de Advogados\", promoted by CESA - Centro de Estudos das Sociedades de Advogados on 10.28.2014, at Hotel Renaissance.
(vii) Members Ana Paula Sá, Paula Leonor Mendes Fernandes Rocha and Rodrigo da Fonseca Chauvet (Rio de Janeiro branch), attended, on 10.27.2014, the I Encontro Econômico Urbanismo Sustentável promoted in partnership by FIRJAN and the Chamber of Trade and Industry Brazil-Germany.
(viii) On 10.28.2014 member Ana Carolina F. de Melo Brito and lawyer Renata Veras Fontes (Recife branch) attended the CEO Forum 2014, which discussed the matter \"Gestores do futuro – Inovação com criatividade permanente\", the most important annual event of Amcham - Recife.
(ix) Members Karyna Saraiva Leão Gaya and Fernanda Cabral de Almeida Gonçalves (Fortaleza branch), attended the CEO Forum 2014, in Fortaleza, which discussed the matter \"O CEO Equilibrista\", the most important annual event of AmCham - Fortaleza.
EDITORIAL COUNCIL formed by: Paula Leonor Mendes Fernandes Rocha and Mariana Vianna Martinelli, coordinated by member Miriam Nascimento Carreira. The information disclosed herein does not represent necessarily the opinion of the Firm. Disclosure restricted to the clients of the Firm or people connected thereto. Disclosure is authorized provided that the source is indicated.
