Since the enactment of the Labor Reform (Law No. 13,467/2017, effective as of November 11, 2017), there has been much debate about the possibility of applying the changes in the rules of substantive law to employment agreements entered into before the Reform.

The discussion in legal scholarship revolves around two distinct scenarios related to the applicability of the new legal provisions: (i) to employment agreements that terminated before the beginning of the Reform; and (ii) to employment agreements entered into prior to its entry into force and which remain active after the expiration of the vacatio legis of Law No. 13,467/17.

Regarding the first scenario, article 5, XXXVI, of the Federal Constitution and article 6 of the Law of Introduction to the Rules of Brazilian Law (the "Law of Introduction") put an end to any discussion. They clearly provide for the immediate applicability of the innovations brought in by the Labor Reform to new hires and, therefore, the inapplicability of the Labor Reform in relation to the employment agreements entered into prior to its enactment.

Article 6 of the Law of Introduction is clear in its head paragraph that the law in force, in this case the Labor Reform, has immediate and general effect, which leads us to conclude that, when the employment agreement is entered into after November 11, 2017, the law in force being Law No. 13,467/17, all legal provisions brought in by the Labor Reform will be fully applicable to such agreement.

Concerning agreements entered into prior to the Labor Reform, it should be pointed out that article 6 of the Law of Introduction deals precisely with matters relating to perfected legal acts and res judicata, thus prohibiting a subsequent law from prejudicing an accrued right. It is undeniable that employment agreements entered into before November 11, 2017, are perfected legal acts, as they were consummated according to the law then in force.

Thus, the main controversy concerns the application of the Labor Reform to labor agreements entered into before its enactment and which remain in force. In the field of legal scholarship, there is debate regarding whether the application of the innovations brought in by the Reform to these agreements would imply violation of accrued labor rights that were provided for in the legislation that was amended or repealed by the Reform.

For example, prior to the Reform, employees who worked in remote locations without collective transportation were entitled to receive "hours in itinere" for the time spent commuting to work. The Labor Reform changed the legal wording and now, even if there is no collective transportation to the workplace, employees do not have the right to receive "hours in itinere".

The discussion after the Reform is whether the company can withdraw the payment of "hours in itinere" from all employees or only from persons hired after the entry into force of the new law. Have employees hired under the previous law accrued the right to receive "hours in itinere"?

The controversy was so great that the government ended up including article 2 in Presidential Decree No. 808/2017, therein expressly providing that "the provisions of Law No. 13,467 of July 13, 2017, applies in full to employment agreements currently in force." However, with the expiration of the term of effectiveness of Presidential Decree No. 808/2017, on April 23, 2017, article 2 had its legal effectiveness vacated, thereby bringing back the issue of the application of the Reform to agreements in force entered into before it.

In order to resolve this issue, it is necessary to differentiate accrued rights from expectations of a right. While the former can be characterized as the scenario in which all the mandatory requirements for a particular right have been fulfilled, the second is translated into the scenario in which all the conditions for the regular exercise of the right have not yet been fulfilled.

As is well known, employment agreements are characterized as relations of successive treatment between the employer and the employee, in which the obligations inherent to the agreement are renewed periodically, like cycles of renewal of rights.

One example is the right to vacation: it cannot be argued that employees with a six-month employment relationship have the accrued right to take vacation. Employees only have an expectation that, after fulfilling the legal requirements, they will have the right to use their vacation. Such an understanding can be applied to other rights arising from an employment agreement.

Taking this understanding as a basis, it is found that, when the factual support that substantiates the guarantee of a certain right or the legal support that guarantees the enforceability of a certain right is modified, a right cannot be said to have been accrued. Thus, the continuation of the legal regime prior to the new law is unenforceable and it is concluded that, for labor agreements entered into before the Labor Reform was in force, the legal innovations brought in by it are applicable to them only after the date of enactment of Law No. 13,467/17.

Thus, answering the question of "hours in itinere", one concludes that the employees simply were not entitled to receive them; they only have the expectation of a right, based on the law that guaranteed them this right. Once the law has been amended in this regard, it is entirely possible that the employee's expectation of a right is also altered and that the payment of "hours in itinere" is abolished after the enactment of the Labor Reform.

For the time being, there is still no unified position from the labor courts on this issue. Anamatra (National Association of Magistrates of the Labor Judiciary) issued non-binding restatements of law regarding the Labor Reform, indicating that the magistrates would walk in the opposite direction because they understood that the agreements entered into before the Labor Reform included an accrued right to the maintenance of the substantive rights envisaged in the previous law.

This understanding, in addition to being contrary to the law and to the best interpretation of the subject, would require companies to have parallel Human Resources controls and policies applicable to employees according to the date of their hiring, which, in addition to being absurd, is fatally mistaken.

More in line with the constitutional and basic principles of Brazilian law, the Ministry of Labor issued on May 14, 2018, an opinion concluding that, even after the loss of the effectiveness of article 2 of Presidential Decree No. 808/2017, the legal provisions brought in by the Labor Reform are applicable in a general, comprehensive, and immediate manner to all employment agreements governed by the Consolidated Labor Laws, including those entered into before the Reform expires and remain in force after November 11, 2017.

On May 16, 2018, a commission of justices of the TST also published an opinion on the amendments brought in by Law No. 13,467/2000, in which the justices concluded that, as far as substantive law is concerned, there should be jurisprudential construction of the changes based on judgments of concrete cases.

Therefore, despite the opinion of the commission of justices of the TST relegating the issue of formation of case law, the fact is that, according to the principles of the application of the norms of Brazilian law, the provisions of the Labor Reform are generally, comprehensively, and immediately applicable to all employment agreements governed by the Consolidated Labor Laws, including those entered into before the Reform was enacted and continue in force after November 11, 2017.