Labor Procedural Law: Conflict Resolution & Legal Sources

Posted on Jan 4, 2025 in Law & Jurisprudence

Labor Procedural Law

Units I – Labor Procedural Law

1. Methods of Conflict Resolution

1.1. Self-Defense

Self-defense involves satisfying a claim through the power of the stronger party. Generally, this practice is prohibited (Brazilian Penal Code, art. 345), constituting the crime of arbitrary exercise of one’s own reasons. Taking justice into one’s own hands to satisfy a claim, even if legitimate, is not allowed unless the law permits it. Exceptions include:

  • a) Right of retention (Brazilian Civil Code/2002, arts. 578, 644, 1.219, 1.433/1.434)
  • b) Immediate repossession (Brazilian Civil Code/2002, art. 1210)
  • c) Legal pledge (Brazilian Civil Code/2002, art. 1467)
  • d) Cutting roots and branches of a neighbor’s tree that extend onto one’s property (Brazilian Civil Code/2002, art. 1283)

1.2. Self-Composition

Self-composition involves resolving conflicts through agreements between the interested parties. This can occur through:

  • Waiver (giving up the claim)
  • Submission (accepting the other party’s claim)
  • Transaction (mutual concessions)

Procedural law supports self-composition in several ways (CPC, arts. 267, paragraphs II, III, and V). Examples in labor law include:

  • Labor agreements (CLT, art. 611, § 1.º)
  • Collective bargaining agreements (CLT, art. 611, caput)
  • Intra-corporate pacts

Conciliation, conducted before a judicial authority, is mandatory in labor proceedings at two moments: at the opening of the instruction and judgment hearing (CLT, art. 846) and after the final arguments (CLT, art. 850). There is also the prior conciliation commission (Law No. 9958, January 12, 2000).

1.3. Heterocomposition (Mediation, Arbitration, and Jurisdiction)

Heterocomposition occurs when a third party is called upon to resolve a conflict. In jurisdiction, the third party is the State, represented by a judge. In arbitration (Law No. 9307 of 09/23/1996) and mediation (Decree No. 1572 of 07/28/1995, and MT Ordinance No. 817 of 08/30/1995), the third party is a private individual. According to COSTA COQUEIJO, in both mediation and arbitration, there is a third party. However, the mediator proposes recommendations, while the arbitrator ultimately issues an award that is imposed, regardless of whether the parties agree or not.

2. Jurisdiction

Jurisdiction is a social function of the State, aiming to apply the law to a specific case, promoting social peace and resolving conflicts. It can be classified as contentious or voluntary. Contentious jurisdiction involves a real dispute, where the State-Judge resolves a legal conflict. Voluntary jurisdiction is purely formal, involving the public administration of private interests. An example is the retroactive option for the FGTS employment regime (period prior to 10/05/1988). In voluntary jurisdiction, there is no dispute between parties.

3. Competence

Competence is the faculty of a judge to exercise jurisdiction in certain places, over certain matters, or over certain people, as determined by law.

4. Process

The process is the method adopted by the State to provide jurisdiction to resolve conflicts. The process varies according to its purpose (e.g., knowledge process, precautionary process, execution process).

5. Procedure

Procedure is the ordered sequence of procedural acts within a specific process.

6. Concept of Labor Procedural Law

Labor Procedural Law is the set of principles, norms, and institutions that regulate the activity of the State’s jurisdictional bodies in resolving individual or collective disputes between workers and employers (Sérgio Pinto Martins).

7. Autonomy of Labor Procedural Law

Labor Procedural Law maintains contact with various legal disciplines, mainly procedural law. Its autonomy is characterized by:

  • a) Broad content
  • b) Homogeneous and distinct conceptual doctrines
  • c) Peculiar study method and set of principles

The determining criteria for the autonomy of Labor Procedural Law are:

  • a) Legislative: In case of omission, the CLT provides for the subsidiary application of Common Procedural Law (art. 769), as long as it does not conflict with the principles of Labor Procedural Law. In labor execution, there is also subsidiary application of other legal standards (CLT, art. 889). Thus, the autonomy of Labor Procedural Law is relative.
  • b) Doctrinal: There is a significant number of doctrines that scientifically discuss Labor Procedural Law.
  • c) Didactic: The discipline of Labor Procedural Law is mandatory in almost all university law courses.
  • d) Jurisdictional: There is a judicial organization with specialized bodies (Labor Courts, Regional Labor Courts, and Superior Labor Court) for resolving labor disputes.

8. Sources of Labor Procedural Law

Sources of Labor Procedural Law are:

  • a) Material Sources: Result from the will of organized society (e.g., union movements, political parties).
  • b) Formal Sources: Arise from the will of the State or the parties, subdivided into:
    • b.1) Autonomous: Resulting from self-regulation by organizations or society (e.g., internal regulations, collective agreements).
    • b.2) Heteronomous: Of purely state origin (e.g., laws, decrees, provisional measures).

The sources of Labor Procedural Law include:

  1. Federal Constitution of 1988
  2. Complementary Laws
  3. Delegated Laws
  4. Regular Laws
  5. Legislative Decrees
  6. Provisional Measures
  7. Extinct Decree-Laws
  8. Decrees
  9. Customs
  10. Internal Regulations of the Regional Labor Courts and the Superior Labor Court
  11. Decisions
  12. International Conventions of the International Labor Organization ratified by Brazil

Note: Although doctrines have a significant impact on decisions, they are not considered a source of law.