Fernanda Grasselli de Carvalho
Lawyer at Marcos Martins Advogados Associados
The succession of companies is characterized by the transfer of material assets, consisting of tangible goods, and also by the transfer of intangible assets, consisting of intangible goods.
The main characteristic of labor succession is the assumption of the successor company’s activities, with total or partial use of the previous business structure, i.e. employees, equipment, clients, business premises, etc. It should be noted that articles 10 and 448 of the CLT presuppose, in order for succession to be established, a change in ownership or in the legal structure of the succeeding company.
It is not enough to simply occupy the physical space or location where the other company carried out its activities, or even to carry out related activities. Labor succession presupposes “a minimum” of continuity of activity between the successor and the succeeded company.
The doctrine is based on this, i.e. when there is continuity in the provision of services, labor succession is obvious. However, even if there is no such continuity, succession must be recognized if the company’s assets, which until then guaranteed the employment contracts, have been completely returned by virtue of a contract of assignment to another party.
See the lessons of Maurício Godinho Delgado and Alice Monteiro de Barros, respectively, on the subject:
B) Continuity of Work – The second requirement proposed by the traditional approach to the legal type of labor succession is the continuity of work provided by the employee to the new owner (for example, the branch is transferred to another bank, but the bank employees remain in their old jobs).
This requirement, it should be clarified, remains important for the examination of countless concrete factual and legal situations – although it can no longer be maintained that it is essential for the existence of the labor succession institute.
The fact is that the presence of the second requirement (alongside, of course, the first one already examined) makes it unquestionable that the celetista legal type applies. If labor continuity is verified in a scenario of inter-company transfer, there will undoubtedly be succession of employers with regard to the new owner of the company or establishment.
However, the lack of the second requirement leads the legal operator to the need for a more detailed examination of the type of inter-company transfer that has taken place. It is not every intra-company transfer that will lead to succession of employer… but only the transfer that significantly affects the previous guarantees of the employment contract.
[…]
[…] if the second requirement is not met, it must be a transfer of a corporate entity that is effectively capable of affecting employment contracts (otherwise the succession institute would be over-extended, seeing it in any inter-company legal transaction). As already explained, it is not every intra-company transfer that will lead to the succession of employer… but only the transfer that significantly affects the previous guarantees of the employment contract.” (Labor Law Course, 11. ed., 2012, p. 421/422, emphasis added.)
“Succession presupposes the following requirements: a) change in the legal structure or ownership of the company (…); (…) c) continuity of employment contracts with the economic unit of production and not with the natural person who exploits it. This last requirement is not essential for there to be succession, as it may happen that the employer dismisses its employees before the transfer of the company or establishment, without paying them their social rights. In this case, the continuity of the employment contract has been hindered by the successor, and the employee can claim their rights from the successor, since, by entering into the agreement, they have not bound themselves to the natural person of the company’s owner, but to the latter, which is the lasting body. The TST has expressed this view in Jurisprudential Guideline No. 261 of the TST’s SDI-1, which states: ‘Banks. Labor succession. Labour obligations, including those contracted at the time the employees worked for the successor bank, are the responsibility of the successor, since the assets, branches, contractual rights and duties have been transferred to it, characterizing a typical labour succession.”. (Curso de Direito do Trabalho, 3. ed., 2007, p. 381/382, emphasis added).
The institute of succession, in the labor field, seeks to guarantee the rights of the employee, considering the maintenance nature of labor payments, which means that there is a transfer not only of credits, but also of labor debts between the companies involved, with them being responsible for the advantages arising from economic exploitation.
An important point to note is that there is no succession of employers when the transfer of business activities is the result of the acquisition of a production unit that has been auctioned off in a judicial reorganization process. This is in accordance with article 60 of Law 11.101/05.
In this regard, see Délio Maranhão’s lesson, focusing on the situation of a bankrupt enterprise:
Thus, also in the event of bankruptcy, succession can occur through the acquisition of the business, once there has been no solution of continuity in the operation of the establishment, given that bankruptcy is not a necessary cause of dissolution of bilateral contracts that can be executed (SAAD, Eduardo Gabriel. CLT comentada. 46. ed. São Paulo: LTr, 2013, p. 114).
The author of CLT comentada continues that
[…] once the provision of services has been interrupted, the employees will have to qualify in the bankruptcy proceedings as privileged creditors. At this point, the employment contracts are terminated. After that, if someone acquires the establishment as a whole and reactivates it, there can be no question of succession of employers (op. cit.).
As we can see, not even the reactivation of the entire economic-productive structure, especially in the event of a major temporal split, would lead to the characterization of succession for labour purposes.
This is why the author of CLT comentada, quoted above, concludes:
In short, succession is clearly configured when the company, as an economic-legal unit, passes from one to another owner, without there being a solution of continuity in the provision of services. (op. cit., emphasis added).
Another point to note is that, according to article 568 of the CPC, the enforcement against the successor does not depend on their participation in the knowledge phase.
In this way, the concept of third party is obtained in contrast to the concept of party. Whereas the party is the one who participates in the adversarial proceedings before the judge, a condition that the plaintiff acquires through the claim, the defendant through the summons and the third party through the intervention.
Succession, in the form of articles 10 and 448 of the CLT, is a form of ordinary supervening passive legitimation. Although the name of the successor does not appear on the enforcement order, with the declaration of succession and the subsequent summons, he has replaced the employer as a party to the enforcement.
As a result of joining the process, the successor ceased to be a third party, so at this point there is no need to talk about third-party embargoes to its defense, since the hypothesis of paragraph 2 of article 1046 of the Code of Civil Procedure does not apply.
Conclusion
Under the terms of articles 10 and 448 of the CLT, a change in the company’s ownership or legal structure will not affect employees’ employment contracts or the rights they have acquired. These legal provisions guarantee the intangibility of employment contracts, protecting workers’ acquired rights in the face of the transfer of the employer’s assets. This means that the successor company is liable for the labor obligations relating to the employment contracts transferred to it by the succession, regardless of whether the workers have provided services to it or not. On the other hand, if the company has been auctioned off in a judicial reorganization process, there is no need to talk about labor succession.
