It is not unusual for lawyers, judges, prosecutors and court administrators involved in judicial reorganization proceedings to fight hotly when it comes to the moment when a labor claim actually arises – when the services are actually rendered or, in the event of a labor claim, when the Labor Court renders a sentence – and its consequent subjection to the effects of the creditors’ contest now being waged by the claimed company.
The discussion in question takes on important contours in light of the provisions of article 49 of Law 11.101/2005 (the Judicial Reorganization and Bankruptcy Law)[1], according to which “all claims existing on the date of the petition, even if not yet due, are subject to judicial reorganization”.
This is because, even though the services were rendered prior to the filing of the petition for judicial reorganization, many judges and state courts, when analyzing the specific case, understood that, if there was a labor judgment after the filing of the creditors’ contest, this claim would not be subject to its effects and, therefore, the claimant creditor could satisfy his claim individually, without any discount or installment payment, typical of approved judicial reorganization plans, directly and indistinctly affecting the assets of the company under reorganization.
Only recently, in November 2017, did the Superior Court of Justice, in the judgment of Special Appeal No. 1.634.046/RS[2], authored by Justice Marco Aurélio Bellizze, appreciate and bring some peace to the issue, interpreting the aforementioned article 49 of Law No. 11. 101/2005 to understand that “the consolidation of a claim (even if it is unenforceable and illiquid) does not depend on a court decision declaring it so – much less on the passing of a final judgment – for it to be subject to the effects of judicial reorganization”.
In short: Regardless of whether the labor claim was the subject of a judgment handed down by the Labor Court in the context of a claim or, furthermore, whether its respective final and unappealable judgment – thus understood as the exhaustion of possible procedural appeals to attack and reform any unfavorable judicial decision – occurred after the filing of the judicial reorganization, what really matters for the constitution of the labor claim is the date of provision of services which, if prior to the distribution of the request for economic and financial reorganization, will subject its satisfaction to strict compliance with the obligations contained in the plan approved at the Meeting of Creditors.
The decision in question undoubtedly sets an important precedent for the area of judicial reorganization of companies, insofar as it provides the business debtor with greater legal certainty as to which labor creditors will actually be subject to the effects of its judicial reorganization, so that it can plan better before filing.
