The monetary correction in labor justice

In recent years, the Labor Court has issued conflicting understandings about the monetary correction of Labor debts. This is because, in the past, the monetary correction and the application of interest on debts were regulated by Article 39 Of Law No. 8,177/1991, which provided for late payment interest at the daily reference rate (“TRD”) between the maturity date of the obligation and payment.

However, paragraph 1 of that article also provided for the application of interest of 1% per month to overdue labor debts, counted from the filing of the complaint. In this mainstay, the courts adopted the understanding that the caput referred, in fact, to monetary correction, since the TRD is entitled to the updating of the national currency, and that paragraph 1 referred to the remuneration of money in time, through the incidence of interest of 1% per month.

Subsequently, Law No. 8,660 / 1993 replaced the TRD with the Reference Rate (“TR”). However, initially, outside the labor sphere, in the Supreme Court (“STF”), through direct actions of unconstitutionality 4.357, 4.372, 4.400 and 4.425, debates arose about the ability of the TR to be used as a monetary correction index, which is why the application of the IPCA-E (national index of consumer prices Special Broad) was brought only for the debts of the public treasury, until the legislative power defined another index.

In this sense, under the terms of the STF decision, the Superior Labor Court (“TST”) also adopted the application of IPCA-E as a monetary correction index for Labor debts.

However, with the labor reform in 2017, paragraph 7 of Article 879 of the CLT explicitly brought the determination of the use of the TR in the correction of debts, but the Labor Court maintained the understanding of unconstitutionality of the TR as such index, as well as of the aforementioned device.

Thus, in the face of such contradiction and legal uncertainty, the Supreme Court determined the suspension of Labor trials of ongoing processes that involved the application of Article 879, paragraph 7, of the CLT, until they decided on the issue involving the theme of interest and monetary correction.

Finally, the current jurisprudential and, today, binding understanding was established, which is the incidence of IPCA-E in the pre-judicial phase and, from the filing of the lawsuit, the SELIC rate, prohibited the cumulation of this with other indices and as occurs in the civil sphere.

It is important to note that it was determined that the parameters set were also applied to the cases that were adjudicated, provided that the judgment did not expressly define the monetary correction and interest and that the debts had not yet been paid.

Despite the binding effect of the decision, there are still disagreements in the courts regarding the incidence of late payment interest, which is why some judges have applied interest of 1% per month in the pre-judicial phase in addition to the correction index of the IPCA-E, since it is understood, by the content of the STF decision, that the Selic rate cumulated with said interest may characterize double conviction (“bis in idem”).

Therefore, it can be concluded that the thesis signed by the SFT, which excluded the interest of 1% per month from the filing of the lawsuit and determined the incidence of the IPCA-E in the pre-judicial phase and the SELIC rate from the citation, guarantees the non-excessive and abusive increase in time of the labor debts sued by the employee against the employer and eventually granted by the court.

Victory Ships Caltran. Lawyer, graduated in law, with emphasis in private law, from Pontifícia Universidade Católica de Campinas (2020), enrolled in the Brazilian Bar Association, São Paulo Section (2021). Lawyer at TM Associados.