Faced with the most varied of controversies that involved not only its enactment, but also its application in substantive and procedural law, the entry into force of Law No. 13,467/2017 (the Labor Reform) is today an inexhaustible source of debate on the new rules imposed, among them, attorneys’ fees to be borne by the losing party.

Formerly without legal provision in the Consolidated Labor Laws (CLT), attorneys’ fees to be paid by the losing party were an old claim by attorneys, which today see in the new article 791-A of Law No. 13,467/13 a fair means of being rewarded for the work done.

Like any new legal rule, however, the main challenge in the change is applying it to cases already in progress, that is, those cases that were assigned before the enactment of Law No. 13,467/17. After all, in these cases, are fees due from the losing party?

The answer to this question can be found in Civil Procedural Law, which experienced a similar situation at the beginning of the enactment of the new Code of Civil Procedure, in 2015. On that occasion, after much debate in the lower courts, the Superior Court of Justice (STJ) addressed the issue by settling the understanding that application of the new provisions on fees borne by the losing party would also occur in ongoing proceedings, provided that the trial judgment rendered on the issue occurred after the entry into force of the new rule.

For the justices of the STJ, the trial decision, as a procedural act that qualifies the birth of the right pursued in the action, is the opportune time to apply the new rule regarding attorneys' fees.

In the field of Labor Law, as the subject is relatively new, it was suspected that moderation of the topic would follow the tendency of civil law. And in fact this is what has happened.

Two rulings, one handed down by the Court of Labor Appeals of the 2nd Circuit (TRT2) and another by the Superior Labor Court (TST), indicate a judicial tendency, as they used the same logic imported from common Judiciary to resolve the problem in the labor sphere.

In the first case, the written opinion of which was drafted by Appellate Judge Thais Verrastro de Almeida, a member of the 17th Panel of the TRT2, an appeal seeking to set aside the trial court’s order to pay attorneys' fees was granted relief after a review of subject in accordance with the aforementioned decision handed down by the STJ:

"Therefore, the interpretation proposed is intended to crystallize the following idea: if the legislation relied on in the trial decision, relating to attorneys’ fees paid by the losing party, was issued before the enactment of Law No. 13,467/2017 and in accordance with Law No. 5,584/1970, the rules of that law, embodied in item I of Precedent 219, as amended by Resolution 204/2016 of the TST, shall be applied, until the occurrence of a final and unappealable judgment. On the other hand, in cases in which a trial judgment is rendered after November 11, 2017, the rules of the new Law No. 13,467/2017, which introduced article 791-A of the Consolidated Labor Laws, shall govern the specific situation.”

In the second case, the written opinion of which was drafted by Cilene Ferreira Amado Santos, member of the 6th Panel of the TST, in the same manner, relief was granted to an appeal seeking to set aside an order to pay attorneys' fees awarded prior to the enactment of the new law. The following is an excerpt from the decision:

"Law 13.467/2017 has immediate application with regard to rules of a procedural nature, however, the change in relation to the principle of costs borne by the losing party only applies to new cases, since it is not possible to apply them to cases decided by the lower courts under the previous legislation and under which the existence of a literal violation of a federal law is reviewed."

However, the issue is not unanimous, since many judges, especially in the trial courts, persist in refusing to grant attorneys’ fees in actions brought before the Labor Reform, but with a trial decision issued after enactment of the law.

The issue should be consolidated by the TST, by means of a precedent. It is possible that this will happen next February 6, when the TST will hold a plenary session to examine several proposals for modification and drafting of new precedents.

Unfortunately, the Commission on Case Law and Normative Precedents, which was formed to review the subject, proposed a new precedent relating to fees for the losing party, the wording of which is contrary to proper application of Procedural Law, as well as well-founded decisions, including those issued by a panel of the TST itself. According to the proposal, the new rules for fees for the losing party apply only to suits filed after the Labor Reform entered into force. This does not mean that the plenary session will adopt such an understanding, but it does show a tendency that may be decided on the topic.