STF prohibits automatic inclusion of companies from the same group in labor execution

The Federal Supreme Court (STF) has a majority of 8 votes to define that companies that are part of the same economic group as another condemned company cannot be automatically included in the labor judgment collection phase. The trial is held in the virtual plenary session that will end on Friday night, the 10th.

In practice, the Supreme Court defined that judges cannot charge or block the assets of a company belonging to the same economic group as another convict if she has not participated in the process from the beginning to present evidence.

The companies’ argument, accepted by the Court, is that the blocking of assets prevents the exercise of defense, including to prove, when applicable, that the company is not part of the debtor economic group. On the other hand, labor courts have understood that the companies that make up the group are “jointly and severally liable” for the debt.

The prevailing understanding is that charging the labor debt of a company that did not participate in the evidence production phase violates the right to full defense. The rapporteur, Dias Toffoli, was accompanied by ministers Cristiano Zanin, Flávio Dino, André Mendonça, Kássio Nunes Marques, Luiz Fux, Gilmar Mendes and Cármen Lúcia. Ministers Edson Fachin and Alexandre de Moraes disagreed.

Only Minister Luís Roberto Barroso, who announced his early retirement yesterday, has not yet voted.

“The Labor Court, often under the idea of ​​an economic group, includes a legal entity that literally has nothing to do, from the point of view of the object of work or formal or even informal relationship with that group that participated in the knowledge phase. This happens day after day”, said Toffoli in February, when the case was analyzed in the physical plenary.

The ministers considered that there are situations that allow the transfer of responsibility to another company already at the collection stage. “Exceptionally, the redirection of labor execution to a third party who did not participate in the knowledge process is permitted in cases of business succession and abuse of legal personality”, says the thesis approved by the majority.

In the vote followed by the majority, Toffoli also defined that the judgment will be applied to redirections prior to the 2017 labor reform, with the exception of cases that have become final, credits already satisfied and archived executions.

The processes dealing with this issue in the Labor Court have been suspended since May 2023 due to Toffoli’s injunction. According to a survey carried out by the jurimetrics software Data Lawyer in August at the request of Broadcast Grupo Estado’s real-time news system, there are around 73 thousand cases on the subject in court, with a total value of R$4.77 billion.

In this specific case, the Court analyzed an appeal from the concessionaire Rodovias das Colinas. According to the company, Rodovias das Colinas itself and other members of the Infinity economic group were included in 605 processes – which resulted in the blocking of R$190 million. In its appeal to the STF, the company argued that “although the companies have common partners and economic interests, they are not subordinated or controlled by the same management”.

The 2017 labor reform defined that the economic group is configured when there is coordination between companies and that just the fact that the same person is a partner in more than one company is not sufficient proof. However, according to lawyers, the Labor Court has treated investors, joint venture and companies that came together for a common interest as economic groups.

Divergence

For Moraes and Fachin, companies from the same economic group are jointly responsible for the debt and can be included in the judgment collection phase, as long as they are able to demonstrate that they are not part of that economic group.

“Often, in real life, when economic groups have debts in relation to one of their companies, they end up selling the ‘good part’ to other companies in the group and the ‘bad part’ goes to a specific company. Practice shows that companies from economic groups that remain very strong, with partners who remain very rich, go into judicial recovery and their workers have nowhere to turn, they have no one to enforce their labor rights”, highlighted Moraes.

For Moraes, demanding that the worker sue all companies in the same economic group at the beginning of the legal action, so that they have the opportunity to defend themselves, “is the same thing as asking them not to take action”.

Fachin also defended that the inclusion of the company in the labor action must be allowed to prioritize the rights of the undersufficient, that is, the worker. “The company had at its disposal all the procedural means to defend its position and, therefore, a cognition that allows it to dispute the very formulation of an economic group”, said the minister.