The Minister of the Supreme Federal Court (STF) Gilmar Mendes dismissed an extraordinary appeal (1160361), on September 14, to reform the decision given by the Labor Court for the execution of a company, without it having participated in the phase of knowledge of the action.
The process included the company in the passive pole for alleged formation of an economic group, only in the labor execution phase. According to the company's defense, it did not have the opportunity to participate in the knowledge phase, which would have impaired the production of evidence, in addition to confronting the guarantee of constitutional principles – such as due process, contradictory and broad defense – and violating the article. 5, II, XXXV, LIV and LV, of the Federal Constitution (CF).
Despite the argument of the defense, the Superior Labor Court (TST) held that there is no affront to the constitutional articles relied on, justifying that the cancellation of Summary 205[1] that court would supposedly allow the inclusion of third parties in the execution phase.
Faced with the negative decision, the company brought an extraordinary appeal to the Supreme Court, which was accepted on the basis of Article 97 of the CF[2] and in Binding Summary 10 of the Supreme Court.
In his decision, Minister Gilmar Mendes founded that, with the 2015 Code of Civil Procedure (CPC), "deserves to revisit the jurisprudential guidance of the the quo in the sense of the feasibility of promoting execution in the face of execution that did not integrate the procedural relationship in the knowledge phase, only because it integrates the same economic group for labor purposes".
For Minister Gilmar Mendes, even with the cancellation of Summary 205 of the TST, according to Article 513, §5 of the CPC, the company, even belonging to the same economic group, could only participate in the execution phase and suffer constriction of assets and block of values, if it had participated in all moments of the process, since the article expressly provides that compliance with the judgment cannot be promoted if the guarantor, co-obliged or responsible has not participated in the knowledge phase.
According to the Supreme Court, following the plenary reservation clause, the TST could not disregard Article 513, §5, of the CPC, but declare it unconstitutional or respect it.
The theme is also addressed in the Fundamental Precept Non-Compliance (ADPF) No. 488, through which the National Transport Confederation (CNT) questions acts carried out by courts and judges of work that include individuals or legal entities only in the execution phase, without them having participated in the phase of knowledge – a situation similar to that of the 1160361.
At ADPF, still in procedure in the Supreme Court, the CNT maintains that the inclusion in the knowledge phase, in addition to not being provided for in the legal system, restricts the principles of contradictory, broad defense and due process, harming those who seek to prove that they do not participate in economic groups.
This is because the procedural and recursive characteristics of the labor execution phase restrict the right of defense, especially in the higher courts, such as the TST, because in them only constitutional matters can be discussed, which affects the interest of the party who did not participate in the knowledge phase of the process.
Some Regional Labor Courts (TRT) have rejected the defendant's insertion not included in the judicial title in the passive pole of action based on the aforementioned violations.[3] However, it is noted that there is still great resistance from TRTs and the TST itself, which makes clear the legal uncertainty for the whole business community. However, although the recent Supreme Court decision was delivered in a monocratic manner, the positioning should impact labor executions substantially.
[1] Summary no. 205 of the TST. ECONOMIC GROUP. EXECUTION. SOLIDARITY (cancelled) - Res. 121/2003, DJ 19, 20 and 21.11.2003. The sympathetic person, a member of the economic group, who did not participate in the procedural relationship as claimed and who, therefore, is not included in the judicial enforcement order as a debtor, cannot be a taxable person in the execution.
[2] Art. 97. Only by the vote of the absolute majority of its members or members of the respective special body may the courts declare the unconstitutionality of law or normative act of the Public Power.
[3] ECONOMIC GROUP. SINGLE EMPLOYER. INCLUSION OF A COMPANY THAT WAS NOT INCLUDED IN THE EXECUTIVE ORDER. IMPOSSIBILITY. A company that is part of an economic group that did not participate in the knowledge phase and was therefore not the judicial executive title cannot be held responsible for the payment of labor claims, under penalty of affront to the constitutional principles of due process and broad defense. The thesis of the single employer or dual responsibility - according to which all members of the economic group are employers - gives guarantees to the worker, but does not authorize the subversion of constitutional guarantees inherent in the conduct of the judicial process. This is because the "single employer" derives from the construction of the doctrine that did not intend, with the use of this expression, to disregard the individuality of each of the companies that are members of the economic group, but only to give them solidarity for the effects of the employment relationship. (TRT-12 - AP: 00025178720105120027 SC 0002517-87.2010.5.12.0027, Rapporteur: HELIO BASTIDA LOPES, SECRETARIAT OF THE 2A CLASS, Publication Date: 11/03/2016)
