By Rafael Mello

On August 4, 2015, the TST Plenary Court decided that the TR index “does not reflect the effective preservation of purchasing power” and determined the replacement of the TR index by the IPCA-e to update labor debts from June 2009 onwards, excluding cases already paid off, a criterion that can lead to an increase in the liabilities of companies with 30% or more.

At the time, Minister Dias Toffoli considered the preliminary request resulting from constitutional complaint No. 22012 and issued the following decision: “I grant the preliminary request to suspend the effects of the contested decision and the “single table” issued by the CSJT in accordance with the order contained therein, without prejudice to the regular proceedings of Labor Action No. 0000479-60.2011.5.04.0231, including appeal deadlines.”.

In December 2017, the STF decided constitutional complaint no. 22012 as follows:

Summary: COMPLAINT. APPLICATION OF CORRECTION INDEX FOR LABOR DEBTS. TR. ABSENCE OF MATERIAL IDENTITY BETWEEN THE GROUNDS OF THE ACT COMPLAINED AND WHAT WAS ACTUALLY DECIDED IN ADIS 4,357/DF AND 4,425/DF. COMPLAINT IS UNACCEPTABLE. TST ACTS WITHIN THE CONSTITUTIONAL LIMITS ASSIGNED TO IT. COMPLAINT IS UNFOUNDED.

I – The contested decision ruled out the application of the TR as a monetary correction index for labor debts, determining the use of the IPCA in its place, an issue that was not the subject of deliberation by this Supreme Court in the judgment of Direct Actions of Unconstitutionality 4,357/DF and 4,425/DF, and therefore did not have strict adherence to the judgments considered to have been disrespected.

II – Despite the lack of material identity between the grounds of the act complained of and what was actually decided in the direct action of unconstitutionality indicated as a paradigm, the decision now contested is in line with the ratio decidendi of the jurisprudential guidance of this Supreme Court.

III – Unfounded complaint.

The STF's understanding was, in other words, that the TR index would not be sufficient for inflationary correction of labor debts and that the provision for its application would be unconstitutional, according to the same rationale already contained in Direct Actions of Unconstitutionality 4,357/DF and 4,425/DF, which would result in the application of the IPCA-e index as the appropriate one.

After these facts and decisions, law 13,467/2017 (labor reform) came into effect and expressly provided in article 897, § 7 of the CLT that the correction of labor credits would be made using the TR index.

In July 2018, the President of the TST sent a letter to the Regional Labor Courts instructing these bodies that, despite the legal provision, the credits should be corrected by the IPCA, which once again represents a potential increase of up to 30% on labor credits.

This guidance given by the TST is based on some premises, such as the fact that the STF had already declared the correction unconstitutional by the TR and even by the result of constitutional complaint 22012.

However, with respect to the Chief Justice of the TST, the concentrated control of constitutionality of a new law – in this case law 13,467/2017 – is the sole responsibility of the STF, and it is certain that the latter did not analyze it.

Apparently, the TST is repeating a mistaken procedure of imposing on the Regional Courts an understanding that certainly does not have a binding effect and, with even greater certainty, does not render the express decision of the Legislative Branch in the choice of the monetary correction index unconstitutional.

There are procedures and rituals to be followed to declare a law or part of it unconstitutional, as well as to give binding effect to a certain procedure, so that this procedure – sending an official letter – violates such procedures and even causes undue interference by the Judiciary in the political decisions adopted by the Legislative and Executive Branches.

Finally, it should also be noted that the procedure that has been adopted by the TST on this topic, especially in this last procedure, is that even knowing the TST's position on the application of the IPCA, it is not known in which cases said understanding would apply or from when, further accentuating the legal uncertainty typical of those who need to litigate in the labor sphere.