August 5, 2015

The Panel of the Superior Labor Court decided, at the meeting that took place last Tuesday (Aug. 4), that the labor credits must be used accordidng to the variation of the Special Broad Consumer Prices Index of the Geography and Statistics Brazilian Institute (IBGE).  The índex will be used by the Superior Labor Justice Council (CSJT) to the monetary updated table of the Labor Justice (only  Table).

The decision was taken during the judgement of the unconstitutionality  complaint, raised by the Minister Claudio Brandão, relating to the de-indexation of Economy Law (Law 8.177/91), which determined the updating values on Labor Justice by the Daily Reference Rate (TRD).  Unanimously, the Panel declared the unconstitutionality of the expression “equivalent to the TRD” which is in the clause 39 of the Law and gives interpretation according to the Federal Constitution for the rest of  the provision in order to preserve the Law facing the monetary updating of labor credits.

 

RECOVERY

In his vote the Minister observed that the Federal Supreme Court (STF), in four direct actions of unconstitutionality (ADIS 4357, 4372, 4400 and 4425), declared unconstitutional the expression “official índex of basic remuneration of savings, mentioned on paragraph 12 of article 100 of the Federal Constitution, and removed the use of “reference rate” (TR).  According to the STF (Federal Superior Court) the monetary updating of credits is the creditor’s right and must reflect the real recovery of purchasing power in face of the inflation period without infringing the fundamental right of property, the res judicata and the principle of proportionality, in addition to the efficacy and effectiveness of the judicial title and seal the illicit enrichment of the debtor.

Facing this subject, it is inevitable to recognize that the expression “equivalent to the TRD” is also unconstitutional because it is impossible to restore the right to the full restoration of credit organized by final judgment” – declared the relater.  This development is called “declaration of unconstitutionality” (or by attracting, by consequence, etc.)  that occurs when the declaration of unconstitutionality of a rule extends to another related or interdependent rules which affects other ones.

Brandão pointed out the necessity of repairing the gap to fix the índex of correction.  “If the rule continues, the worker will suffer the consequence of some increasing losses, resulting from the use of monetary índex that does not reflect the variation in the inflaction rate”, he also declared and affirmed that the TRD, in 2013, was 0.2897%, while the IPCA was 5.91%.

 

INTERPRETATION

The declaration of unconstitutionality is given rise to the new legal debate in order to define the índex to be used.  To avoid a “legal vacuum” the Planel has decided to adopt the interpratation technique according to the Constitution for the rest of the caput of article 39 – Law 8.177/91, which guarantees the updated of labor credits, extinguishing only the expression considered contrary to the Constitution and ensuring the right of índex that reflects the variation rate of inflation, among various such as: IPC, IGP, IGP-M, ICV, INPC and IPCA.