The year 2023 was marked by a clash between the decisions handed down by the Labor Courts and the Federal Supreme Court (STF), especially with regard to accepting the validity of other types of employment relationships, in addition to the employment relationship provided for in the Consolidated Labor Laws (CLT).

Despite the decisions handed down by the STF in actions for concentrated control of constitutionality (ADPF 324, ADC 48, ADIs 3.961, and 5.625) and the theory established in general repercussion in the judgment of RE 958252 (Topic 725), the Labor Courts continue to recognize the unlawfulness of other forms of hiring.

This understanding was sometimes based on doctrinal ideals used as grounds for legal relationships regulated by different instruments to be considered fraudulent and end up having an employment relationship recognized as established in the CLT.

As a result, there was a flurry of constitutional complaints that culminated in hundreds of STF decisions annulling decisions handed down by the Labor Courts due to non-compliance with Supreme Court precedents. These STF decisions are sometimes accompanied by severe criticism of the way in which the Labor Courts administer justice.

The Labor Courts, in turn, feels increasingly under attack in the face of threats to strip it of its jurisdiction and the constant overturning by the Supreme Court of understandings that had previously been established in the Labor Courts.

The clashes between the STF and the Labor Courts show that we are still a long way from achieving the legislator's goals of reducing repetitive litigation, guaranteeing equal protection for the litigants, and increasing the legal certainty of judicial activity. It is not new that the Brazilian legal system has been structured to achieve these goals, as was the case with the reforms to the old Code of Civil Procedure, Constitutional Amendment 45, the promulgation of the Code of Civil Procedure in 2015, and the Labor Reform in 2017, among other initiatives.

With the enactment of Constitutional Amendment 45 (EC 45/03), the constitution introduced the concept of binding precedents into our legal system. Taken in its full context, this initiative is an approximation of the idea of the duty to observe judicial precedent present in common law. The aim is precisely to impose a normative mechanism that helps to standardize case law and provide greater legal certainty for the litigants.

In the same vein, the 2015 Code of Civil Procedure requires judges to comply not only with binding precedents, but also with all decisions handed down by the STF in actions for concentrated control of constitutionality, in rulings on incidental proceedings for assumption of jurisdiction, or resolution of repetitive demands and in the judgment of repetitive extraordinary and special appeals, and with the precedents handed down by the STF and STJ. The same applies to the guidelines of the courts en banc or special bodies of the courts to which they are attached.

Despite the legislator's efforts to impose mechanisms for the social pacification of judicial activity, 20 years after EC 45/03 and almost a decade after the "New" CPC entered into force, little progress has been made in reducing repetitive litigation. There are still many conflicting decisions on the same subject, which creates undeniable legal uncertainty for labor litigants.

Much has been said about the political differences between the two judicial bodies as the cause of these conflicting positions. However, it seems to us that the difficulty in providing greater legal certainty in decisions is, in fact, intrinsically related to the undue use of discretion in judicial activity, which must be rejected in any instance.

Within the scope of the Labor Courts, despite the fact that the Constitution confers jurisdiction on these courts to prosecute and judge any and all disputes over labor relations, in general, what was observed was an almost automatic classification of the legal relationship between the parties under the CLT.

This practice was often carried out in a discretionary manner, as a way of protecting one of the parties from what was seen as making labor precarious, completely ignoring the circumstances that permeated other forms of hiring. This led the discussion to the STF so that the issue could be settled.

Currently, even in the face of the STF's binding decisions, some Labor Courts continue to act in a discretionary manner by not even weighing the STF's precedents when faced with discussions regarding invalidating legal relationships without an employment relationship.

By legal and constitutional force, the decisions handed down by the STF in actions of concentrated control of constitutionality - such as those handed down in ADPF 324, ADC 48, ADIs 3.961 and 5.625, as well as in the judgment of RE 958252, which led to the theory general repercussion set out in the enunciation of Topic 725 - consist of formal sources of labor law.

These decisions cannot, as some labor judges have been doing, be ignored in judicial rulings. The STF's intention to curb decisions that, based on discretionary acts, ignore the existence of binding decisions is therefore legitimate.

On the other hand, the existence of binding decisions as mentioned above cannot have the power to rule out the functional jurisdiction of the Labor Courts, provided for in the Constitution, to hear and decide conflicts related to labor relations. Labor judges have the prerogative to proceed with a hermeneutic interpretation of labor law, in all its sources, which includes binding decisions, with the autonomy to cease applying them, as long as the techniques for overcoming precedents are duly used, with an emphasis on distinguishing and overruling.

In this sense, it seems to us that the solution to impasses of this kind will only come about when the courts overcome totalitarian ideologies and definitively abolish the adoption of discretionary criteria in the administration of justice, using techniques for the formation and interpretation of precedents. This is necessary in order to ensure greater legal certainty and swift and efficient access to justice for all litigants.

These are certainly the wishes for 2024 of all legal practitioners, especially those who practice in the Labor Courts.