With the advent of the Labor Reform, Law No. 13,467 of 2017, in effect since last November 11, the so-called defeat fees were introduced in Article 791-A in the Consolidation of Labor Laws (“CLT”): “the lawyer, even when acting in his own cause, shall be entitled to retaining fees, set at a minimum of 5% (five percent) and a maximum of 15% (fifteen percent) on the amount resulting from liquidation of the award, the economic benefit obtained or, if this cannot be measured, on the updated value of the cause.
The new rule on retainer fees and its application by the Labor Court is one of the controversial points of the labor reform even before it goes into effect. It led to a veritable “flood” of labor lawsuits on its eve, expecting that the interpretation of the Courts would be that the new rules would only apply to lawsuits filed after November 11, 2017.
Although this is in fact the position that has been prevailing in the Labor Courts of the country, the Supreme Court recently took a different view.
In a recent unanimous decision handed down in an interlocutory appeal (ARE 1014675), the 1st Panel of the STF denied the winning party’s request for an award of fees based on a supervening procedural rule (art. 791-A of the CLT), not because the lawsuit had been filed after November 11, but because the decision had been handed down after that date.
In the terms of the vote of Justice Alexandre de Moraes, reporting on the case: “the right to attorney’s fees for defeat arises at the moment the sentence is rendered. If such a credit was not foreseen in the legal system at that procedural moment, it cannot be stipulated based on a later law, under penalty of offending the principle of the law’s non-retroactivity.
In addition, according to the same decision, “neither is the subsidiary application of the Civil Procedure Code of 2015, with regard to the arbitration of this amount on appeal, insofar as such practice presupposes the provision of fees at the origin, which is not verified in this case.
The STF’s judgment corroborates the decision of the 6th Panel of the Superior Labor Court (TST), rendered on a review appeal in December 2017.
It would be hasty to consider that the STF has already taken a position on the timing of the fees, i.e., in the sense that the right to retaining fees applies to cases filed before November 11 but with a sentence handed down afterwards. After all, the decision in question did not exactly address the fixing of defeat fees according to the date of distribution of the action.
But it will be essential that companies follow the issue closely, since the impact on the amount of provision for labor liabilities can be substantial.
The matter is pending a decision by the STF Plenary, which is expected to discuss the issue in the direct action of unconstitutionality (Adin) filed by the Attorney General’s Office (PGR), which also questions the requirements for free legal assistance.
The above text does not represent or replace a recommendation and is not exhaustive. DDSA Advogados will be available to guide its clients regarding the labor reform.