Resolution No. 241 of the Superior Council of the Labor Judiciary (CSJT), in force since June 6, amends some of the rules of Resolution No. 185, bringing in important changes in the use of the Electronic Judicial Procedure (PJe).
For the practice of labor law, there are some changes, such as the possibility of submitting an answer, counterclaim, and documents accompanying them under seal, without the magistrate being able to order them excluded, and the obligation to use the PJe-Calc tool to submit calculations of judgment debt.
The changes were provided for by law, respectively, in paragraphs 4 and 6 of article 22 of the new resolution. In the past, it was possible to file an answer, counterclaim, and documents in a confidential manner, provided that the parties supported the confidentiality based on the scenarios set forth in article 770, head paragraph, of the CLT (Consolidated Labor Laws) and articles 189 or 773 of the CPC (Code of Civil Procedure).
The first opportunity in positive law to file the briefs in question under seal arose with Resolution No. 94/13 of the same council. However, the change made by Resolution No. 185 created a paradox: either the documents were filed without confidentiality, exposing the theory in defense before the hearing, which changes the practice observed at the time of physical proceedings and relativizes the provision of article 847, head paragraph, of the CLT, or the briefs were presented under seal, delivering them for the subjective review of the magistrate.
In this subjectivity, of course, there are appellate decisions that modify the striking of documents ordered by trial judges and also those that uphold them.
Setting aside the decision by the trial court that ordered the striking of the answer and documents presented by the company, the judgment handed down in the record of case No. 0000622-18.2018.5.21.0009, of the authorship of appellate judge Ronaldo Medeiros de Souza, of the 2nd Panel of the Court of Appeals for the 21st Circuit, addressed in detail the topic of confidentiality:
"Law No. 11,419/2006, which provides for the computerization of judicial proceedings, promoted a radical change in the way the procedural acts are performed, so that, today, we are improving the electronic mechanisms and changing the procedural legislation order to ensure greater compatibility between the two.
However, it is the PJe-JT System and its peculiar rules that are subject to labor procedural legislation, not the other way around. In this sense, article 847, head paragraph, of the CLT indicates that the opportune time for the presentation of the answer in a labor claim is after the first attempt at settlement has been frustrated, being an option of the party, to do so orally or, per the terms of the sole Paragraph of the legal provision in question, to present it in writing via the electronic judicial proceeding system before the hearing.
As the respondent has pointed out well, the fact that it submits its defense in advance through the PJe-JT System does not imply that the opposing party must have access to it before the appropriate procedural moment, i.e., after the first attempt at settlement. The logic that presides over this system is, as the respondent said, to "foster and preserve good dialogue in negotiation, delaying the adversarial nature of the process" (675).
Interestingly, the same court has a decision in the entirely opposite direction, ratifying the exclusion of the answer and its documents, as seen in the headnotes below:
Answer. Confidential nature. Non-receipt. Curtailment of defense. Nullity cured. Absence of prejudice. Ripe Cause. Decision on the request. The filing of the answer under seal does not impose an obstacle on the Court blocking its review, still more so when the time limit set by it for it to be presented is observed. Moreover, the scenario at bar does not challenge the application of the provisions of paragraph 2, of article 9, of TRT21 Act No. 634/2013, since, at the time of the filing of said briefs, the first hearing had not yet taken place. However, even rejecting the answer, the trial court did not declare default, and validated all the evidence submitted by the defendant, in addition to, during the course of the pre-trial phase, granting it full exercise of the right of defense, such that the suit was duly instructed, in such a manner that it is not possible to declare the nullity, due to application of the provisions set forth in article 794 and 796, a, of the CLT. (TRT-21 - ROPS: 00002731520185210009, Date of Decision: November 6, 2018, Date of Publication: November 9, 2018. Opinion drafted by: Ricardo Luís Espíndola Borges)
Thus, Resolution No. 241 of the CSJT comes in good time to end the debate regarding the use of the “confidentiality" option in filing the answer, counterclaim, and documents. The magistrates are expected to accept the content of the resolution, which, we should agree, did nothing more than ensure compliance with the head paragraph of article 847 of the CLT for lawsuits proceeding via electronic means.
The other important novelty brought about by Resolution No. 241 of the CSJT was the mandatory use of PJe-Calc, a tool developed to standardize the presentation of calculations in labor suits. This is a very complete solution that, although considered "didactic" and "intuitive" by its creators, has a complex instruction manual and several videos explaining its operation. Perhaps for this reason compulsory use was delayed until January of 2020.
Resolution No. 241 of the CSJT, therefore, brings the PJe closer to the labor practice, making technology work for the practice of law, and not vice versa, as it is not uncommon to find situations where practices affecting physical proceedings are hampered by the characteristics and functionalities of the electronic procedure.