The discussion related to the direct payment of FGTS to employees has barely been standardized by the Brazilian Superior Labor Court (TST) and is already subject of controversy. Some point out that the binding precedent consolidated by the TST on February 24, 2025 conflicts with the decision issued by the Superior Court of Justice (STJ) in May 2024.
The controversy is whether the FGTS and the FGTS penalty can be deposited directly into the employee's bank account or if the payment must be made into the employees’ FGTS account.
According to the STJ, if the deposit results from a settlement approved by the competent judge, the worker may indeed receive the amount directly into their bank account. Otherwise, no.
The STJ made the decision when addressing cases where the deposits resulted from judicial settlements. The court understood that the analysis of the legality of this destination had already been made by the competent judge. Therefore, a new evaluation would not be appropriate, except through a rescission action. The discussion gave rise to Theme 1.176.
The TST, on the other hand, understands that FGTS and the FGTS penalty cannot be deposited directly into the employee's bank account. The reasoning is that FGTS deposits serve not only for the worker's subsistence but also for social purposes that transcend the individual interest of the worker.
Furthermore, according to decisions issued by the TST itself, interest and corrections resulting from the deposited amounts do not belong to the worker but to the FGTS’s management. Paying these amounts directly to the worker would, therefore, violate the rights of third parties.
The specific case that the TST examined to standardize the thesis, however, does not result from a settlement ratified by courts. This allows us to conclude that the decisions issued by the TST and the STJ can coexist in the Brazilian legal scenario.
Direct deposit into the worker's bank account has proven to be an effective composition mechanism, as it allows the employee to receive the amount more simply, in addition to facilitating and relieving the employer from the cost of reopening months and months of payroll to retroactively record deposits that were not collected at the appropriate time.
With the new understanding of the TST, some Labor judges may stop approving settlements that allocate the amounts directly to the employee. Therefore, especially in this period when the controversy is still recent, the settlement agreement drafted by the parties should address the existence of STJ Theme 1.176 to increase the chances of the judge ratifying the agreement as intended by the parties.
This article inaugurates our series "Binding Precedents of the TST in 2025 and their Impacts on Businesses", which explores, in a simple way, the impacts of the binding precedents established by the TST on company operations and businesses. The labor practice at Machado Meyer is available to provide additional clarifications on the topic.
Click here to read the other articles in the series.
