Put: Vitor Antony Ferrari and Ivan Kubala*

As is known, the legislation that provides for judicial recovery and bankruptcies dates back to 2005, and until the beginning of 2021 the original text underwent very few or almost no changes, so that during the 15 (fifteen) years of validity it was up to the Judiciary to resolve various points that arose throughout the application of the law to specific cases.

This context includes issues involving labor credits, whose rules, despite being well defined in the legal text, have always been the subject of extensive debate, especially due to their greater rigidity compared to other credits subject to the judicial recovery process.

Thus, as could not be otherwise, the reform introduced by Law No. 14,112/2020 also inserted into the legal text some new features relating to labor credits, which, despite not having definitively and satisfactorily resolved all issues involving the matter, deserve attention.

It was already the subject of another article published on our communication channels[1] the rule provided for in article 54 of Law No. 11,101/05, which establishes a period of 01 (one) year for payment of labor credits, in which we exposed the obstacles that this rule, applied with excessive rigor by many Courts, can generate for absolutely viable companies.

Thus, aiming to make this rule a little more flexible, the reform introduced into the original text the possibility of extending the term by up to 2 (two) years. However, this exception depends on 3 (three) requirements that must be met cumulatively by the debtor company, namely: (i) presentation of guarantees that must be approved by the Judge; (ii) approval of the class creditors; and (iii) guarantee of full payment.

Despite the praise for the new rule, it appears that the legislator extended the term for payment of labor creditors by up to 03 (three) years, but, for this hypothesis, excluded the possibility of applying discounts to labor creditors, a topic that, despite not containing legal provision, is still not settled.

On the other hand, the third requirement appears to reinforce the possibility of applying a discount to labor credits for cases in which the general rule is used (1-year term).

On the other hand, the reform missed the opportunity to define the initial term for the counting of the term provided for in the aforementioned article, a topic that has different positions within the State Courts. Given this gap, the issue reached the STJ, which, in a recent decision in Special Appeal No. 1,924,164, wrote another chapter on the topic by defining that the term provided for in art. 54 of Law No. 11,101/05 begins on the date of granting of the judicial recovery (approval of the judicial recovery plan).

This decision represents an important step towards pacifying the issue, ensuring greater legal certainty for companies undergoing judicial recovery, which, depending on the location of the process, could be faced with different understandings, such as, for example, in the State of São Paulo, where the Court of Justice consolidated the position according to which the deadline for payment of labor creditors should be counted either from the approval of the recovery plan or immediately after the end of the suspension period provided for in the Article 6, paragraph 4, of the LFRE, regardless of extension, whichever occurs first

Therefore, what can be extracted from both the reform of the law and recent case law is a movement towards granting greater flexibility to the rules inherent in the payment conditions of labor creditors, in favor of preserving the company, maintaining its activities, jobs, its social function and without prejudice to the interests of its creditors.

Aware of these changes, our office has a highly qualified team to guide its clients in accordance with the most up-to-date legislation and case law on the subject.

[1] https://www.mazzuccoemello.com/possibilidade-de-flexibilizacao-das-condicoes-de-pagamento-dos-credores-trabalhistas-no-plano-de-recuperacao-judicial/