On September 30, 2024, the National Council of Justice (CNJ) unanimously approved Resolution No. 586, through Normative Act 0005870-16.2024.2.00.0000, which regulates the making of an agreement between employee and employer in the termination of the employment contract, through homologation in the Labor Court, with the general discharge of the contract. In other words, once the agreement has been reached, the employee can no longer file a labor claim against the employer.
Among the reasons for the proposal is excessive litigation, which makes the cost of the employment relationship uncertain and can discourage investments needed to create formal jobs. The aim of reducing the number of labor claims is also one of the reasons given for drawing up the Normative Act.
According to the CNJ’s Justice in Numbers report, cited in the normative act, in the years 2022 and 2023 the Labor Court had approximately 5.4 million pending cases.
Faced with this scenario, we are increasingly moving in the direction of finding and continuing to act through alternative conflict resolution solutions, in alliance with participatory social action instruments, with the aim of reducing the volume of judicializations and, consequently, the heavy cost of the judicial machine.
Out-of-court conflict resolution offers a number of advantages for companies looking to resolve disputes in an efficient and practical way. By opting for this method, companies have the opportunity to preserve relationships, save resources and avoid wear and tear that is often unnecessary.
In fact, with the entry into force of the Labor Reform, articles 855-B et seq. were included in the CLT, which deal with the voluntary jurisdiction process for ratifying out-of-court settlements.
Since then, a wide-ranging discussion has arisen in the Labor Courts about whether or not it is possible to grant a general discharge from the employment contract by means of these agreements. Until then, labor jurisprudence presented significant divergence on the subject, especially on the possibility of the magistrate partially ratifying the agreement signed between the parties – that is, ratifying the agreement, but with the exception of the general discharge clause of the employment contract.
CNJ Resolution 586 regulates the general discharge of employment contracts, provided that certain requirements are met, namely: express provision for the effect of the general discharge of the employment contract; assistance of the parties by different lawyers, or by the union; assistance by parents, curators or legal guardians, in the case of a worker under 16 or incapacitated; and the absence of any vices of will or defects in the legal business provided for in articles 138 to 184 of the Civil Code, which cannot be presumed by the mere hyposufficiency of the worker.
Agreements that do not comply with the requirements listed will be discharged only in respect of the sums and amounts expressly stated in the draft. The Resolution also expressly prohibits the partial ratification of agreements. In other words, it will be up to the magistrate whether or not to approve the agreement, and it is forbidden to exclude clauses inserted by mutual agreement between the parties.
However, the disciplined discharge does not cover claims relating to accidents/occupational illnesses that are ignored or that are not specifically referred to in the agreement between the parties at the time the agreement was made; claims relating to facts/rights in relation to which the holders were not aware at the time the agreement was made; claims by parties not represented or replaced in the agreement; and securities and amounts expressly reserved.
Judicial approval of the agreement will depend on the spontaneous provocation of the interested parties or their legitimized procedural substitutes, to the legal judicial bodies, including the Judicial Centers for Consensual Methods of Dispute Resolution of the Labor Courts (CEJUSC-JT).
For the first six months, the rules set out in the Resolution will only apply to agreements whose total value is equivalent to 40 minimum wages on the date they are signed.
The Resolution published by the CNJ, although it does not bring any major innovations to what is already provided for in the Labor Code, promises to guarantee greater security for the parties when making an out-of-court agreement to be ratified by the Labor Court, since they will have the security of checking the general discharge of the employment contract and the impossibility of partial ratification by the Labor Court.