NEWSLETTERS, ARTICLES AND MEDIA
NEWSLETTERS
Hightlights
In this edition, we highlight an opinion of the Brazilian Supreme Court (STF) that refers to article 384 of the Consolidation of Labor Laws (CLT), determining that the fifteen-minute pause for women before overtime is in compliance with the Federal Constitution.
Another important piece of news is related to the recent opinion of the 4th Judicial Panel of the Supreme Labor Court (TST), construing that an attorney’s delay to a hearing – when it does not affect the production of evidence – is no ground for a default judgment.
Enjoy your reading!
Legal Bulletin
CIVIL AND CIVIL PROCEDURE LAW
Expiration dates of the statutes of limitations that take place during the collective holidays shall be extended until the first business day after them.
The statutes of limitations shall be extended until the next business day if the expiration date takes place during the collective holidays of the courts.
With this opinion, the 3rd Judicial Panel of the Superior Court of Justice (STJ) determined the continuation of a procedure for complementation of shares that was deemed expired by the district court.
This interpretation, which determined the continuation of a procedure for complementation of shares that was declared expired, is relevant and impacts on a number of other processes because all the ten-year terms that started when the Civil Code of 2002 came into force (January 11, 2003) ended on January 11, 2013, when the procedural terms were still suspended in some courts due to local rules.
In his opinion, Justice Sanseverino explained that the Court of the State of Rio Grande do Sul made a distinction between substantive law claims and procedural law claims and understood that the suspension of terms should comprise only the procedural law claims, allowing substantive law claims (such as the complementation of shares) to be extinguished by the statute of limitations during the collective holidays of courts.
Justice Sanseverino chose the same line of the STJ precedents, which allow the extension of the final term to the next business day, regardless of the nature of this term – whether related to the statute of limitations or to the statute of repose, substantive or procedural law – and states that, in that case, considering that the suit was filed on the first business day after the suspension of terms, the expiration shall not be granted, and voted in favor of granting the special appeal to deny the expiration, determining that the suit be resumed in the district court. The other Justices of the 3rd Judicial Panel agreed with his opinion.
TAX LAW
The National Board of Justice (CNJ) will analyze the preliminary injunction that changed the index of inflation adjustment of federal bonds.
In October, the CNJ granted a preliminary injunction determining that default rates be excluded from federal bonds that are paid in installments and being processed in the Federal Regional Courts. The Board also determined that the index of inflation adjustment IPCA-E be replaced by TR due to an opinion of the Supreme Court, which encompasses exclusively the debt of the States and Municipalities.
The measure was based on alleged irregularities pointed out in the calculation of RPVs (Requests of Small Value) in the TRF of the 1st region, shown in a report that resulted from the audit performed in the Federal Court. Based on the conclusions, the internal auditor of the CNJ, Justice Nancy Andrigh, determined that both the TRF and the Board of the Federal Justice (CJF) abide by the decision, which resulted in the payment of installments being blocked and some demonstrations against the determination. Many people, such as the Federal Advisor of the Brazilian Bar Association in São Paulo (OAB/SP) stated that the decision was illegal.
In March, 2013, the STF deemed EC 62/09 to be partially unconstitutional. The amendment to the constitution created the new special regime for the payment of federal bonds. In the records of the Direct Procedures of Unconstitutionality (ADIns) 4.357 and 4.425, the STF declared partially unconstitutional the EC 62/09, as well as § 2, 9, 10 and 12 of article 100 of the Federal Constitution, which regulated preferential payment, the rules of mandatory compensation and the inflation adjustments of the debts according to the index of the savings accounts. The payment in installments of the federal bonds in up to 15 years and the conduction of auctions to prioritize the creditor that is willing to give a better discount (special regime – article 97 of the Act of the Transitory Constitutional Provisions – ADCT) were also deemed to be unconstitutional by the Supreme Court. The initial term of this measure is yet to be determined. A later protective measure by Justice Fux, of April, 2013, determined that the courts continued paying the federal bonds as established by EC 62/09 until the Supreme Court issued an opinion on the initial term. Later, the issue was discussed again in a plenary session, but the judgment was most recently suspended last March because Justice Toffoli asked to review the records. The decision of Justice Nancy Andrighi was issued in this context.
Disagreeing with the decision of the internal auditor, OAB filed a request for reconsideration of the preliminary injunction, arguing mainly that the Law of Budget Guidelines (LDO) from 2014 elects IPCA-E from IBGE as inflation adjustment index for federal bonds, not TR.
REGULATORY LAW
Law 15.374/2011. City Council of São Paulo makes the use of plastic bags more flexible.
After the judgment of the Direct Procedure of Unconstitutionality filed against Law No. 15.374/2011, on 10.01.2014 and revocation of the preliminary injunction that suspended the Law that prohibited the circulation of plastic bags, many discussions on the term and beginning of inspections were raised in the media.
According to that Law, it is prohibited for commercial businesses in the capital to give or sell plastic bags; consumers should be encouraged to use reusable bags and the businesses should fix an informative sign for their customers, encouraging the use of reusable bags.
About the actual possibility of controlling, there are two viewpoints to be considered:
(i) According to Law No. 15.374/2011, article 6, failure to comply with the law will result in the penalties set forth by Federal Law No. 9.605/1998 (Law of Environmental Crimes). Thus, literally interpreting the Law, it would be self-applicable and there would be the possibility of immediate inspection and service, considering that the penalties are listed in that Federal Law.
(ii) On the other hand, interpreting the law more systematically, one can see some obstacles to immediate compliance. Furthermore, some legal argument may be raised that there cannot be inspection without due regulation on administrative sanctions in the local sphere, and that criminal provisions cannot be defined or imposed through municipal laws.
Nevertheless, solving the question of inspection and term, the city council of São Paulo stated, in November, that supermarkets may distribute plastic bags in their stores. However, the plastic bags should be standardized – color, size, and resistance – and their disposal by the consumer should be only for dry residues, like plastic or glass packages, making sorting easier.
The use of the plastic bags will not be permitted to send organic residues to landfills as it happens currently, when the plastic bags are collected by garbage trucks. For that purpose, people shall obtain new bags.
The city council gave a sixty-day term for the industry and supermarkets to present the new model of plastic bags agreed upon.
LABOR LAW AND LABOR PROCEDURE
The STF has decided that article 384 of CLT, which grants a fifteen-minute break for women before overtime, is constitutional.
The plenary of the Brazilian Supreme Court (STF) has decided by majority on 11.27.2014 that article 384 of CLT, which requires a break of at least 15 minutes for female workers if the regular working hours are extended, before the overtime, complies with the Federal Constitution.
There had been major discussions on the unconstitutionality of the article, arguing that the article infringes the provisions that guarantee equality between men and women (article 5, items I and XXX da CF) and, consequently, offends the isonomy principle, as it allows different treatment based solely on gender.
Precedents of the Superior Labor Court (TST) had already indicated that this special condition to women did not go against the constitutional equality principle, which was confirmed by the STF in a judgment that forms judicial law.
By majority, the STF concluded that the specific constitutional clause protecting equality of genders does not deny the possibility of differentiated treatment, as long as justified by legitimate elements. In this case, the STF pointed out the historic exclusion of women from the labor market, the existence of an organic and biological component, including less physical endurance and the social component known as double-shift – the accumulation of tasks by women at home and in the workplace.
Therefore, the discussion on the applicability of article 384 of the CLT was solved, and compliance can be demanded from employers immediately.
SOCIAL SECURITY LAW
The STF has decided that the use of Personal Protective Equipment (PPE) may exclude special retirement
Articles
The articles (i) “STATE INTERFERENCE IN THE GUARANTEES OF CONTRACTUAL LEASE AGREEMENTS” written by attorney Ezequiel Frandoloso, (ii) “THE UN RECOGNIZES AND ENDORSES THE AUTONOMY OF SPORTS” written by consultant Caroline Nogueira, (iii) \"PLASTIC BAGS” and (iv) “IS BRAZIL PREPARED TO APPLY THE LAW THAT EXTINGUISHES DUMPS?” written by partner Ana Carolina F. Mello may be read on http://www.trigueirofontes.com.br.
Trigueiro Fontes News
(i) Trigueiro Fontes Advogados, together with AASP – Association of Lawyers in São Paulo, organized the lecture “20 years of Injunction Measures” on November 24 to 27.
(ii) The members of the Executive Committee of Trigueiro Fontes have changed. Currently, the members are the partners Henrique Soares Oliveira (President), Karyna Saraiva Leão Gaya, and Manoel Duarte Pinto.
(iii) Paulo Antônio P. Couto, attorney at Trigueiro Fontes Advogados, was selected to be on the list of attorneys recommended by LACCA – Latin American Corporate Counsel Association for litigation practice in Latin America.
(iv) Luiz Ricardo Giffoni, partner at Trigueiro Fontes Advogados, represented the firm in an event of the pharmaceutical industry in Switzerland, where he presented a lecture on “Brazil Legal Trends”.
(v) Ezequiel Frandoloso, attorney at Trigueiro Fontes Advogados, is now a collaborator to the Bulletin of Real State Law (BDI) of the website Diário das Leis.
(vi) Trigueiro Fontes Advogados has organized a breakfast where the topic “Outsourcing – Measures for risk reduction” was discussed by the partners Juliana Oliveira da Lima Rocha and Daniela Ruth Cabral Espinheira.
EDITORIAL BOARD composed by members: Paula Leonor Mendes Fernandes Rocha and Mariana Vianna Martinelli, coordinated by partner Miriam Nascimento Carreira. The information herein does not necessarily express the opinion of the Firm. Disclosure is restricted to clients of the Firm or people connected to it. Disclosure authorized, as long as the source is indicated.
