Companies recover R$ 33 million deposited in Labor Courts.

Companies have managed to recover at least R$ 33 million this year from labor courts that had been deposited in escrow to secure labor debts or guarantee the right to appeal. Amid the pandemic, these funds were replaced by surety bonds, based on a favorable ruling from the Superior Labor Court (TST). The survey was conducted by Data Lawyer Insights, a jurimetrics platform.

This year, up to the 18th of this month, the Labor Courts received 12,200 requests for the substitution of cash payments with insurance, almost 50 times more than in 2019, which totaled 254. These lawsuits amount to approximately R$ 150 million, according to Data Lawyer Insights.

Among the requests from 2020, approximately 50% were resolved. The majority of them were approved – 2,867, totaling R$ 33 million. These benefit companies such as JBS, Itaú, and Eletropaulo. The insurance policies typically range from 0.5% to 1.5% of the labor debts. In the case of appeal deposits, the amount is fixed. With the insurance, the money returns to the company's coffers.

The rush to the courts began after the issuance, on May 29th, already during the pandemic, of Joint Act No. 1/2020, issued by the Superior Labor Court (TST), the Superior Council of Labor Justice (CSJT), and the General Inspectorate of Labor Justice (CGJT). The rule allows for the substitution of cash with surety insurance, following a determination by the National Council of Justice (CNJ).

Although the measure was foreseen in the 2017 labor reform (Law No. 13,467), there was resistance from judges to apply it, especially after the issuance of Act No. 1 of 2019 by the TST, CSJT, and CGJT. The rule did not allow for substitution. However, it was eventually revoked by the CNJ.

According to lawyer Mariana Cerezer of Finocchio & Ustra Advogados, there is now greater legal certainty for companies wishing to apply. However, she adds, companies must present policies that meet the requirements set by the Labor Court. Among these requirements are a policy value 30% higher and a minimum term of three years, with automatic renewal.

According to Mariana, the measure should release deposited funds without affecting the provision made by companies. She states that, from an accounting perspective, amounts deposited in court cannot be deducted. For example, a company with a debt of R$ 30,000, which deposited R$ 10,000 in court, declares R$ 30,000 as a provision. "Now I can return these amounts to the company's cash flow without having to reduce the provision," she says.

The movement to exchange money for insurance is significant, according to Adriano Almeida, CEO of Avita, a startup that issues and manages insurance policies. He states that he serves 120 economic groups that intend to map their deposits and then file requests to carry out the exchanges. "Today, this money deposited in legal proceedings is perhaps the worst investment that exists," he says.

According to lawyer João Póvoa, partner at the law firm Bichara Advogados, the exchange is worthwhile, especially for appeal deposits. The money not spent on the deposit can be used for other purposes. It's cheaper,” he states. He adds that the exchange does not represent a risk to the proceedings. “If, eventually, when the execution phase arrives, the process is not paid, the insurance company is charged. The risk then becomes the insurance company's.”

With the authorization granted by the TST (Superior Labor Court), several companies have benefited. Itaú, for example, recently obtained a decision from the TST to replace a deposit in a collection of approximately R$ 6.1 million (RR-10839-91.2015.5.03.0150). The request had been denied by the Regional Labor Court (TRT) of Minas Gerais.

In the 8th Chamber, however, the ministers validated the presented policy. The rapporteur, Minister Dora Maria da Costa, understood that the surety bond is equivalent to money, provided it has an increase of 30%, according to Jurisprudential Guidance (OJ) No. 59, issued by the Specialized Subsection II in Individual Labor Disputes (SBDI-II). She also highlighted that there is an express provision to this effect in the labor reform law.

Eletropaulo has also been reviewing its actions. The labor lawyer who advises the company in some cases, Silvana de Araújo, from Rocha, Calderon e Advogados Associados, states that she has filed 13 lawsuits, in disputes involving amounts ranging from R$ 200,000 to R$ 1 million.

Of these, she claims to have already obtained court rulings to release the money in 11 cases. Two others were denied because they became final judgments. "The pandemic and the economic crisis have been taken into consideration. Judges have based their decisions on the fact that they cannot ignore the current situation," she says.

This is what happened in one of the cases judged by the judge of the Regional Labor Court of São Paulo, Wilson Fernandes, who granted an injunction to Eletropaulo on August 28th. Besides demonstrating that there was no legal impediment, he states in the decision that "one cannot ignore the exceptional situation currently experienced by society, whose harmful consequences, in numerous areas, will affect everyone, indiscriminately, for several months, perhaps years."

JBS also recently succeeded in getting the 3rd Panel of the TST to accept the surety bond, after its request was denied in the TRT of Minas Gerais, which required a policy with an indefinite term (case no. 10270-89.2017.5.03.0063).

In the decision, the rapporteur, Minister Alberto Bresciani, states that the TST's jurisprudence allows the use of surety bonds even in these cases. "In such a situation, it must be renewed or replaced before its expiration," he affirms, citing other similar rulings.

Contacted by Valor, Itaú declined to comment. JBS's press office did not respond by the time of publication.

Source: Valor Econômico