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The correction of resources and deposits of labor debt must be carried out by the National Extended Consumer Price Index (IPCA-E) in the pre-judicial phase, as is the case of civil sentences in general. From the quote, the Selic rate must be applied. That was what the Supreme Court decided in session this Friday (12/18), which marks the last trial before recess.
Rosinei Coutinho / SCO / STF
The ministers decided to modulate the decision so that the correction is made by the IPCA-e and Selic until there is specific legislation. The only one who disagreed on the modulation was Minister Marco Aurélio.
Most of the ministers agreed with the rapporteur, Minister Gilmar Mendes, who voted in favor of discarding the use of the Reference Rate (TR) for the monetary correction index. The trial began in August, but was suspended at the request of Dias Toffoli, who today had the majority.
According to Toffoli, the Supreme Court has precedents that indicate that the TR is an index that does not reflect the change in the purchasing power of the currency. Nunes Marques followed the vote: he was not part of the court when the trial began. For him, the IPCA-E is the appropriate index to measure labor debt inflation because “it measures the variation in consumer prices.”
The collegiate also agreed that, although there is no parliamentary deliberation on the issue, the role of the Supreme Court is to establish which scenario is constitutional. According to Gilmar Mendes, it was not enough to remove TR, “it must be said what the index [a ser seguido]”.
The expired current understood that only the IPCA-E should be applied, as decided by the Superior Labor Court in 2016. The ministers Luiz Edson Fachin, Rosa Weber, Ricardo Lewandowski and Marco Aurélio integrated this line of understanding.
Until 2016, the calculation was done by TR. However, the TST modified this understanding, based on the jurisprudence of the Supreme Court, which declared unconstitutional the expression “equivalent to TRD”, contained in article 39 of the Law of Deindexation of the Economy (Law 8,177 / 91).
Although the STF judges dealt with court cases, the labor court, at that time, declared unconstitutional “dragging” the incidence of the TR on labor debts.
The 2017 labor reform added a new chapter to the story, as the use of TR began to be determined (in paragraph 7 of article 879 of the CLT, for example). Last year, another turnaround: MP 905 reinstated the IPCA-E. But it was revoked by MP 955, in April this year.
Two months later, in June, Gilmar granted a court order to suspend the sentence of all the ongoing processes in the Labor Court that discuss correction rates.
The actions
The ministers analyze two declaratory actions of constitutionality filed by the National Confederation of the Financial System (Consif), the National Confederation of Information and Communication Technologies (Contic) and two other class entities.
They request the declaration of constitutionality of the provisions that provide for the use of the TR: articles 879, paragraph 7, and 899, paragraph 4, of the CLT, with the wording given by the labor reform (Law 13.467 / 2017); and article 39, caption and paragraph 1, of the law of deindexation of the economy (Law 8,177 / 91).
Two ADIs dealing with the same issue also met for trial. In the lawsuits, the National Association of Labor Justice Magistrates (Anamatra) alleges that the provisions violate the protection of labor and workers’ wages.
Click here to read the rapporteur’s vote
Click here to read Toffoli’s vote
ADC 58 and 59
IDA 5,867 and 6,021
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