Article 475-J of the former Brazilian Code of Civil Procedure (CPC) established a penaly of 10%-fine over the total amount that the labor debtors failed to pay within 15 days from the subpoena. To pressure companies to pay the claimants’ judgment debts more quickly, several judges applied this rule in labor cases.

Defendants argued in defense that the Consolidated Labor Laws (CLT) have their own rules for execution and, therefore, Courts should not apply article 475-J in labor cases. Even if that were not the case, article 889 of the CLT establishes that the principles that govern the process of tax executions for judicial recovery of outstanding debts with the Public Treasury (Law No. 6,830/1980) should fill any gaps in the CLT, and not the CPC.

Legal uncertainty was established in Brazil. Judgment debtors could be required to pay a 10%-fine, or not, depending on the subjective understanding of each judge. It was a matter of luck. The Regional Labor Appellate Courts (TRTs) and the Superior Labor Court (TST) also varied in their understanding.

In July 2010, Subsection I Specialized in Individual Disputes of the TST (SDI-I), in an opinion drafted by Justice Brito Pereira, concluded that the penalty provided in article 475-J is not applicable in labor proceedings because there is no gap in the CLT and the rule provided in the CPC is incompatible with labor proceedings. In this respect, note, for example, that article 882 of the CLT stipulates that if the judgment debtor does not pay the debt within 48 hours, it may secure enforcement by depositing or submitting assets for attachment. However, article 475-J does not allow for such alternatives, for which reason its application in labor proceedings would violate the principle of due process.

Since the SDI-I’s understanding did not generate judicial guidance or a restatement of law, uncertainty remained, prompting the filing of various review appeals to TST and a variety of motions based on the same issue: the applicability of article 475-J of the CPC in labor proceedings. Given the relevance of the matter and the existence of disparate understandings among TST Justices, the matter was scheduled to be decided in an ancillary proceeding for repetitive appeals.

On August 21, the ancillary proceeding was reviewed and decided, accepting SDI-I’s major position, which demonstrates the Justices' concern in safeguarding labor concepts, rather than simply imposing on judgment debtors an onus instituted by the CPC.

The prevailing theory in the decision on the ancillary proceeding is binding on all courts within the Labor Judiciary in Brazil and should be adopted in future decisions. The proceedings that were suspended will resume their course for judgment and application of the theory established by the TST.