Marília Silva de Melo
Lawyer at Marcos Martins Advogados
One of the great peculiarities of the labor courts is the requirement of an appeal deposit for filing appeals, regulated by article 899 and paragraphs of the CLT.
The appeal deposit serves as a way of guaranteeing the Court in advance, and its amounts are regulated by the Superior Labor Court and adjusted annually. Currently, the amount for filing an Ordinary Appeal is R$9,828.51, and in the case of a Review Appeal, Motion to Stay Appeal, Extraordinary Appeal and Rescission Action Appeal, the amount is R$19,657.02.
However, since November 2017, with the changes brought in by Law 13,467/2017, the appeal deposit can be replaced by a bank guarantee or judicial guarantee insurance, as stipulated in the included paragraph 11 of article 899 of the CLT.
A bank guarantee consists of a contract in which a banking institution, in the role of guarantor, guarantees compliance with the agreement signed between the guarantor and its creditor. The bank issues a letter of guarantee with a maximum term, which will be demonstrated by the contractor in the event of collection or enforcement by the creditor. It should be clarified that bank guarantees are regulated by the Central Bank (BACEN).
Guarantee insurance, on the other hand, is a contractual relationship in which the borrower pays a premium to an insurance company to ensure compliance with contractual obligations. In the case of guarantee insurance, the insurer may be fully liable for this management, up to the amount of the guarantee provided for in the policy. Guarantee insurance is regulated by the Superintendence of Private Insurance (SUSEP).
It is worth pointing out that bank guarantees are usually more expensive than surety bonds and compromise the company’s credit limit with banks.
Before Law 13,467/2017 came into force, bank sureties and judicial guarantee insurance were already accepted in labor proceedings, but only in cases that were already in the execution phase, for attachment and guarantee of the Court, since the provisions of article 835, paragraph 2 of the Code of Civil Procedure, applied subsidiarily to labor proceedings, apply, which provides that for the purposes of substitution of attachment, bank sureties and judicial guarantee insurance are equivalent to cash, provided that the amount is not less than the amount of the initial debt, plus 30%.
Thus, if a company had a labor lawsuit already in the execution phase and wanted to guarantee the court, it could, instead of depositing the executed balance, guarantee it by means of a bank guarantee or court guarantee insurance for the amount plus 30%.
Well, since November 2017, it has been possible to use these alternatives to replace the appeal deposit, so that the company does not have to use the high amounts in its cashier to access the double degree of jurisdiction.
It should be noted that due to the omission of the CLT regarding the 30% required by the CPC in cases of guarantee through bank guarantee and judicial guarantee insurance, the TST regulated the issue through Joint Act TST.CSJT.CGJT No. 1, of October 16, 2019, which recently had some of its articles amended by Joint Act TST. CSJT.CGJT No. 1, of May 29, 2020, which amended articles 7 and 8 of the aforementioned Act, which now stipulates that the requirements of the Joint Act, as well as the provisions of article 835, paragraph 2 of the CPC, which regulates the 30% increase in value, must be observed in order to be replaced by bank guarantee and judicial insurance.
By way of example, for a company that has a labor claim against it, if a sentence has been handed down which is unfavorable to it, and it wants to file an Ordinary Appeal for consideration by the Regional Labor Court, in addition to paying the procedural costs, which amount to 2% of the amount of the conviction, it will also have to pay R$ 9,828.51 as an appeal deposit.
However, if the company wishes to replace the appeal deposit with a bank guarantee or court-appointed surety bond, it must submit a bank guarantee or court-appointed surety bond for the current amount of R$12,777.06, which is the amount of the appeal deposit for Ordinary Appeals plus the 30% required by law.
At the current amounts required as an appeal deposit, in order for the company to file ordinary appeals such as Ordinary Appeals, Review Appeals and Interlocutory Appeals, the company would have to dispose of R$39,314.04 in cash! With the possibility of substituting a letter of guarantee or surety insurance, even if the value of the letter of guarantee and the judicial surety insurance need to be increased by 30%, the company will not be left with these amounts “inactive”, since they will be deposited in the case for approximately three years, the average duration of a Labor Court case, but they can remain in the company’s working capital, which will only pay the labor debt when and when it is definitively established that it is justified.
For cases that are already underway, and where the company has already made the appeal deposit in cash, it can also apply for this substitution, since Joint Act TST.CSJT.CGJT No. 1, of May 29, 2020, changed the wording of article 8, which expressly provided that such substitution could not occur, and now provides that for the substitution, an application must be made to the judge or rapporteur competent to decide the request at the stage the case is at, whether at the origin or at the appeal stage.
Furthermore, our legal system provides for the immediate and general application of procedural law, respecting the vacatio legis, the perfect legal act, acquired rights and res judicata, coupled with the fact that article 835 of the Code of Civil Procedure states that bank guarantees and insurance guarantees are equivalent to cash.
Thus, in the face of a critical scenario that the world economy has been and will be going through, these substitutions give a boost to companies that don’t have large sums of money in cash, removing them from their tills and invoices immediately, so that they can capitalize and invest more in their businesses, without having to give up their constitutional right to appeal to higher courts.
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