05/6/2024
On May 22, the 1st Section of the STJ (Superior Court of Justice), under the system of repetitive appeals (Theme 1.176), unanimously decided that FGTS payments made directly to the worker are valid when there is an agreement ratified by the Labor Court.
The Court considered that although such conduct is contrary to the provisions of the governing legislation, it is important to consider that it resulted from an agreement ratified by a Labor Court Judge.
In the same decision, it was ensured that the Union and Caixa Economic Federal have the possibility to charge the employer for any amounts that should have been incorporated into the FGTS, such as fines, monetary corrections, interest, and social contributions. These amounts do not belong to the worker and, therefore, are not included in agreements in the Labor Court.
With the establishment of the repetitive thesis, the special appeals and grievances in special appeals, either in the STJ or in the second instance, which were suspended awaiting the definition of the qualified precedent, may resume.
The judged case originated from an action filed by a football team against the Union, aiming to declare the regularity of FGTS payments made directly to their employees, following the ratification of agreements in the Labor Court.
The second instance, following the first instance ruling, recognized the effectiveness of the amounts paid directly to employees after the enactment of Law 9.491/97, while ensuring the continuation of the tax execution for the remaining debt amount.
In REsp 2.003.509, the National Treasury argued that according to Law 8.036/90 (which regulates the FGTS), there is only one instance where the said payment can be made directly to the worker: in the event of dismissal without cause. Even in such a case, the payment was limited to indemnity and the deposit related to the month of termination and the immediately preceding month. According to the Treasury, after the amendment introduced by Law 9.491/97, the only way for the employer to fulfill their FGTS obligations was to deposit into the worker’s linked account.
However, in his vote, the Reporting Minister Teodoro Silva Santos explained that the original wording of Article 18 of Law 8.036/90 allowed for the possibility of direct payment to the worker when the termination occurred at the employer’s initiative. With the advent of Law 9.491/97, however, the employer became obligated to deposit all FGTS-related amounts into the worker’s linked account.
Nonetheless, the Minister highlighted that, despite the normative commands requiring the deposit into a linked account, direct transactions between employer and employee had become common. “Direct payment, despite being contra legis, has been authorized by the Labor Court that ratifies the agreement.”
He then emphasized that, with the aim of seeking the prompt receipt of funds by the disadvantaged party in the labor relationship, “there is no doubt that the judicial decision to proceed in this manner does so in violation of the law.” However, in his view, although conducted in terms contrary to the governing legislation, it cannot be ignored that the agreement was scrutinized by the judiciary.
In February 2022, the 2nd Panel of the Superior Labor Court (TST), also unanimously, had already decided on the validity of FGTS payments made directly to the worker when resulting from a judicially ratified agreement (TST-AIRR – 10051-15.2018.5.03.0169, DEJT of 02/25/2022).
In her vote, Reporting Minister Maria Helena Mallman recognized the authority of the agreement ratified by the Judiciary, stating that there is no reason to invalidate it, since the agreement resulted from the balancing of the parties’ interests, ensuring compliance with the norms guaranteeing the social rights of workers, with the proper receipt of FGTS funds under judicial protection.
Despite the current divergence in understanding among other Panels of the TST, according to Articles 926 and 927 of the Code of Civil Procedure, judges and courts must observe the decisions rendered in the context of repetitive special appeals. This leads us to conclude that there will be a change in the Superior Labor Court’s stance on this issue, considering the Thesis Established by Theme 1.176.
Authored by: Fabiane Sant’Anna
