Honorários advocatícios sucumbenciais na justiça do trabalho após a reforma trabalhista de 2017: aspectos controversos do art. 791-A da CLT

Abstract

The Labor Reform (Law No. 13467/17) brought significant changes to labor law, both materially and procedurally. Among these changes, there is a completely different rule on the hypotheses of incidence for collection of succumbatory legal fees in the labor scope, as set forth in the new art. 791-A of CLT. The succumbency, hitherto applied on an exceptional basis, affecting exclusively the employer in cases where the worker was assisted by his professional union and cumulated with the circumstance of being a beneficiary of free justice, became a rule in the labor process, imposing a burden for employers and employees, including those who, due to their precarious economic condition, are entitled to the aforementioned benefit of judicial gratuity. Less than six months after the beginning of Law No. 13467/17, a number of controversial issues have been widely discussed in doctrine and in the courts, such as the constitutionality analysis of art. 791-A, application of the new legislation on processes already started before the beginning of the Labor Reform; and the criteria for the definition of reciprocal succumbency. This monography proposes to analyze these issues from an interpretation compatible with the fundamental rights guaranteed by the Federal Constitution of 1988, in particular, the access to Justice, and with the guiding principles of Labor Law. The methodology used consisted of a bibliographic survey on the studied subjects, analysis of available statistical data on the effects of the Labor Reform and research in the jurisprudence of the TST, STJ and STF.