The Federal Supreme Court (STF) will decide in a physical plenary session on Theme 1232, which deals with the inclusion of companies from the same economic group in the execution phase of labor proceedings. The final decision will have a significant impact on companies and workers throughout Brazil.
In order to determine whether one organization can be held liable for the labor debts of another, it is crucial to understand the concept of an economic group. This is characterized by the interconnection of two or more companies by relations of management, control, administration or common economic objectives. Various criteria are considered to recognize an economic group, such as concentration of decision-making power, identity of partners and integration of activities.
Once an economic group has been identified, companies can be held liable for the labor debts of other companies in the group, even without having participated in the process. This liability arises from the interdependence between the companies in the group and the need to guarantee the effectiveness of the decisions handed down in the proceedings.
Until 2003, Precedent 205 of the Superior Labor Court (TST) prohibited the inclusion of companies in the enforcement phase if they had not participated in the initial phase of the process, even if they belonged to the same economic group. However, when the Precedent was canceled, a new scenario emerged. Since then, the courts have validated the inclusion of organizations from the same economic group in labor enforcement, generating debates about the regularity of this practice in the face of the principles of adversarial proceedings and full defense.
The rapporteur of Theme 1232, Justice Dias Toffoli, proposes that the inclusion of companies in the execution phase should only occur after an Incident of Disregard of Legal Personality (IDPJ), which is a procedure that seeks to hold partners or administrators liable for debts or obligations assumed by the company, when there is abuse of legal personality for fraud or damage to third parties.
This measure aims to guarantee companies’ right of defense and, at the same time, improve the effectiveness of the process. However, the rapporteur’s thesis faces resistance, as some jurists argue that the late inclusion of a company in the process through the IDPJ would only be valid in cases of proven fraud.
Including companies directly in the enforcement phase can result in unforeseen financial costs, including the payment of damages, fines and legal fees, without them having had the opportunity to defend themselves during the initial phase of the process, not adequately reflecting the reality of the facts, as well as the risk of reputational damage to their customers, suppliers and other business partners, increasing the risk of insolvency.
So far, four justices have voted in favor of including companies from the same group in the enforcement phase, with the last three votes following the rapporteur’s suggestion to use the IDPJ. With five justices still to vote, the outcome is uncertain and could generate various interpretations and debates.
It should be noted that Justice Dias Toffoli requested that the judgment on Theme 1232 be suspended for a period of 10 days, as well as that the virtual mode be converted so that the judgment could be held in person.
Regardless of the outcome of the trial, the legal uncertainty surrounding the liability of companies in the economic group will persist. The STF’s decision, even if it provides clearer definitions, will probably not completely eliminate the controversies and dissatisfaction surrounding the issue.
Keeping abreast of the developments of Theme 1232 is essential for companies to prepare for the possible impacts of the decision. Consulting a lawyer specializing in employment law is essential to assess the risks and opportunities and to advise companies on the appropriate measures in each case.
If you have any questions on the subject, our labor team is available to answer them.
