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    Retroactivity of the most beneficial law in the labor notice of infraction

    August 12nd, by Paula Silveira Gonçalves

    The retroactivity of a more beneficial law is a general principle of law; it is an overarching legal theory that holds that a subsequent law that no longer qualifies an act or event as an infraction, or lessens the punishment imposed, applies instantly to earlier acts or facts, excluding or reducing the penalties imposed by the authority.

    The principle of retroactivity is not just applicable to criminal law, it must be applied to all areas of sanctioning law, including administrative fines levied by labor inspectors working for the Ministry of Labor and Employment in the course of their duties to check for compliance with labor laws. This is the starting point that will be defended in this case and that the courts have previously acknowledged.

    The retroactivity of the most beneficial law is gleaned from the readings of the Constitution (article 5, XL), the Pact of San Jose de Costa Rica’s (article 9), the Penal Code (article 2, sole paragraph), and the National Tax Code (article 106).

    Common to all of the aforementioned clauses is the clause that states that the law shall only retroactively apply in the offender’s favor and never to his detriment, replacing the more severe penalty based on the law in force at the time the act was committed with the less severe penalty imposed by the later rule. The illegal act is no longer punished when the law that typified it is repealed.

    Although the Constitution refers to the retroactivity of the most beneficial rule only in the criminal sphere, As the Full Bench of the Federal Supreme Court (STF) already stated regarding the applicability of the presumption of innocence principle to administrative sanctioning proceedings (MS 23.262/DF), the principle needs to be generally applied to all sanctioning legislation.

    This understanding has been adopted by the Brazilian courts and was also accepted by the 1st Panel of the Superior Court of Justice (STJ), when it decided that “the principle of retroactivity of the most beneficial criminal law, contained in Article 5, XL, of the Constitution of the Republic, reaches the laws governing administrative sanctioning law.”

    On another occasion (REsp 1.153.083/MT), the STJ decided that an underlying principle of the Sanction Law, according to which the most beneficial law is retroactive, can be extracted from article 5, XL, of the FC.

    The Pact of San Jose da Costa Rica (Decree 678 of 1992), a supralegal standard that does not restrict the application of the principle of retroactivity to criminal law, supports the same line of thinking (article 9).

    Under penalty of violating the principle of retroactivity of the most beneficial law and strict legality, it is crucial that there be a precise correlation between the infraction and the act or event mentioned in the rule when it comes to punitive state action. If this correspondence is later determined to be unsubstantial, the court or administrative body may at any time revoke the notice of infraction.

    In the field of labor law, such fundamentals are perfectly applicable. Consider the situation where the labor inspector issued an infraction notice in 2018 that stated that the worker’s workplace should hold the first copy of the Occupational Health Certificate (ASO), which is in accordance with item of Regulatory Standard No. 7 and the wording given to Ordinance No. 24/1994.

    The SEPRT Ordinance No. 6734 of March 10, 2020, however, repealed this provision, and the present wording of NR-7 no longer mandates that the original copy of the ASO be physically lodged at the location where the service is rendered.

    Therefore, the offender’s request to have the administrative proceeding that is now underway, and the court annulment action accept the

    Notices of Infraction that were drawn up in the old wording of the rule, since the aforementioned wording no longer subsists in the legal system.

    The Regional Labor Court of the First Region’s decision, which dealt with the illegality of outsourcing as specified in Precedent 331 of the TST, which was replaced following the implementation of Law 13.467/17, declared the administrative proceeding and the notice of infraction null and void.

    In the cited appellate decision, reporting judge Fernando Antonio Zorzenon da Silva emphasized that the distinction between criminal and administrative illegal conduct is only in the degree of reprobability of the practiced conduct, which attracts the principles of retroactivity of the most beneficial law under labor law and administrative sanctioning law.

    According to the appellate decision, the rule established in TST Precedent no. 331 regarding the creation of an employment bond in the event of outsourcing of end activities has been overcome, and the country now fully permits outsourcing of any of the contractor’s activities, including its primary activity, so there is no justification for maintaining the administrative process and the applied penalty.

    Note that the act may be reviewed up until the date of the final administrative judgment, either through a revision control conducted by the sanctioning public agent or judicially through an annulment action.

    Given that it is an issue of public order, one may even claim ex officio the nullity or mitigation of the notice of infraction penalty as well as the dismissal in the administrative procedure due to the retroactive application of the most beneficial law. In fact, even after the deadline for opposition has passed, the authority is still required by law to review the ex-officio assessment in order to apply the most beneficial fine to all tax credits that have already been established under administrative collection, as stated in article 149, I, of the CTN.

    For these reasons, it is argued that when the revocation or modification of the legal basis upon which the infraction notice was issued is confirmed, the administrative penalties imposed by the Ministry of Labor and Employment in the inspection of compliance with labor legislation should be reviewed to benefit the assessed party.

    BALEEIRO, Aliomar. Direiro Tributário Brasileiro [Brazilian Tax Law], 10th Version, Rio de Janeiro, Forense, 1981, p. 428/429.

    PAUSEN. Leandro. Direito Tributário: Constituição e Código Tributário à luz da doutrina e da jurisprudência [Tax Law: Constitution and Tax Code in the light of doctrine and case law]/Leandro Paulsen. 16. Ver. — Porto Alegre: Livraria do Advogado Editora; ESMAFE, 2014.

    STJ, RMS 37.031/SP, Minister Judge Regina Helena Costa 1st Panel, j. on 2/8/2018.

    STF. RE 596.152, reporting Minister Judge Ricardo Lewandowski, Full Bench, DJe 2.13.2012.

    TRT1, ROT 0102483-67.2017.5.01.0032. Rio de Janeiro. Reporting Judge Fernando Antonio Zorzenon Da Silva. Trial’s Date: 7/14/2020. 9th Panel. 7/21/2020.

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