The discussion about the need for companies in judicial reorganization to guarantee the court has increased in recent years in the labor sphere, the lack of legal provision and the different legal interpretations make the issue difficult to resolve in the courts.
There are currently numerous divergences in case law. Some courts interpret that article 884, paragraph 6 of the CLT only exempts philanthropic entities from the obligation to provide a guarantee of the court in order to oppose execution motions and, therefore, does not apply to companies in judicial reorganization, which is a necessary requirement for appeals against labor execution.
On the other hand, through an extensive interpretation of the rule and the social role of the company, another jurisprudential trend has emerged, in which the understanding is that “companies under judicial reorganization are prevented from having resources to guarantee the judgment, in light of article 172 of Law 11.101/05” (IRDR Case No. 0000186-98.2021.5.06.0000).
For the Regional Labor Court of the 6th Region – Pernambuco, the requirement to guarantee the court for companies undergoing judicial reorganization conflicts with the constitutional guarantees of access to justice, the adversarial process and a broad defense, as well as causing a risk of non-compliance with the reorganization plan – consequently – hurting the principle of preserving the company enshrined in article 47 of Law 11.101/05, in a way that even affects the company’s own creditors and workers in financial crisis.
The understanding gains strength by analogy with article 899, §10 of the CLT, which grants exemption to companies in judicial reorganization for the appeal deposit, as well as by the constitutional guarantee of article 5, LV, of the Federal Constitution, which ensures the adversarial process and broad defense to all parties by means and appeals.
The Rapporteur, Dr. Claudia Maria Samy Pereira da Silva, Judge of the Regional Labor Court of the 1st Region – Rio de Janeiro, through Technical Note No. 04/2023 recommended the establishment of an IRDR (Incident for the Resolution of Repetitive Demands), so that the understanding on the need or not for a guarantee of the court by a company in judicial reorganization to oppose embargoes to execution and subsequent interlocutory appeal is standardized, she highlighted the relevance of the discussion due to the high volume of actions since 2021 on the same matter within the scope of TRT 1.
Recently, Judge Dr. Claudio José Montesso proposed IRDR No. 0107860-08.2023.5.01.0000 based on the aforementioned Technical Note in order to resolve the controversy and establish a uniform understanding, the IRDR was admitted.
On February 8, 2024, the rapporteur of the incident, Judge Roberto Norris, ordered the suspension of all pending cases dealing with the issue of the need for a court guarantee by a company undergoing judicial reorganization, and on April 16, 2024, the case files were received by the Full Court of TRT 1 for inclusion on the judgment agenda.
The decision will contribute to the formation of an important jurisprudential precedent, which will bring essential elements to guarantee the principles of equality, speed and legal certainty. However, it is likely that the debate will continue throughout the country, since the TRT 1’s standardization of understandings is not linked to the other jurisdictions.
Therefore, strategic monitoring of recent court decisions and their impact on the resolution of labour claims allows organizations to anticipate effectively and prosper in both the economic and social spheres.
If you have any questions, our labor team is at your disposal.
