In September 2021, Minister Gilmar Mendes of the Supreme Federal Court (STF), rapporteur of ARE 1,160,361, decided that the TST (Superior Labor Court) should review a question related to the liability for labor debt of a company that has not participated in the knowledge phase of the process.
The theme is relevant because, in 2003, the Superior Labor Court canceled Summary 205, which determined that the company's participation, from the phase of the knowledge phase of the process, was essential, so that it could be held responsible for the labor debt of another company of the same economic group.
Thus, since then, it has become common for the inclusion, in the execution phase, of companies that were still foreign to the strange process, under the understanding of belonging to the same economic group of another company, which is the debtor of claims before the Labor Court. Thus, consequently, such companies become joint ly owes of the debt, which allows them to collect the full payment of the amounts due from them.
According to Minister Gilmar Mendes, however, this type of procedure confronts the provisions of §5 of Article 513 of the new Code of Civil Procedure, in force since 2015. That provision states that "compliance with the judgment may not be promoted in the face of the guarantor, the co-obliged or the co-responsible who has not participated in the knowledge phase".
In the specific case, by validating the inclusion of companies from the same group only in the execution phase, the Minister considered that the TST would have incidentally declared the unconstitutionality of §5 of Article 513 of the new Code of Civil Procedure, which could not be done at that instance, but only by the Full Court, the content of Art. 97 of the Constitution (the so-called Plenary Reserve).
The Minister Rapporteur also raised The Binding Summary No. 10 of the Supreme Court, which states that:
"Violates the plenary reserve clause (CF, Article 97) the decision of a fractional body of a court that, although it does not expressly declare the unconstitutionality of law or normative act of the Public Power, removes its incidence, in whole or in part"
Therefore, The Minister Gilmar Mendes broke the decision of the TST that validated the inclusion of a company considered as the same group only in the execution phase and determined that said Court profira new decision in the case.
Photo: Carlos Moura/SCO/STF