Since the enactment of Law No. 11,101/05, legal scholars and case law have been trying to find a fair balance between the principles that govern bankruptcy law and the necessary protection of workers' rights. More recently, the case law has been revisiting issues pertinent to the treatment of labor creditors in reorganization and bankruptcy proceedings. At the same time, legislation has also challenged old formulas and sought new perspectives, especially with the advent of Law No. 14,112/20.

In the discussions prior to the approval of Law No. 11,101/05, the need to incorporate into the legislation a new vision that would break with the old paradigm of absolute inflexibility of workers' rights was already perceived, in order to reconcile the interests of the working class with the need to preserve the company. This was emphasized in an opinion by Senator Ramez Tebet when the text of the law was presented in the Federal Senate: "What is intended is to provide conditions for viable companies to remain active. Clearly, profound administrative reorganizations will often be necessary. But the important thing is that workers are not victimized by the most deleterious social effect of bankruptcies: the unemployment that arises from the pure and simple disintegration of bankrupt companies."

Although there is still some resistance, one notices that the case law tends to give labor claims  a more suitable treatment to protect the business activity and even the interests of the workers themselves. In addition to the need to ensure effective conditions for the viability of business, a balance is sought so that the legislation’s mechanisms for protection do not turn into damage precisely for those whom the law sought to protect.

As an example, there is the recent judgment of REsp No. 1.924.164/SP, which discussed the starjting point of the one-year term provided for in article 54 of Law No. 11,101/05 for payment of labor claims. In this case, with Justice Nancy Andrighi writing for the court, the Superior Court of Appeals (STJ) reversed the decision of the São Paulo Court of Appeals (TJSP) to define that the starting point for the payment of workers is the date of ratification of the plan, and not the date of the end of the period of suspension of actions against the debtor in possession, as indicated in Ruling I of the Group of Chambers Reserved for Business Law of the TJSP. In her written opinion, the Justice pointed out that "[...] maintenance of the solution granted by the appellate decision at issue may result in losses for the creditors to whom the Law sought to grant special treatment, given that, in view of the limited financial resources of the debtor in possession, they may be compelled to accept even greater discounts due to having to receive the amounts prior to the beginning of the company's reorganization."

The TJSP, which in the aforementioned judgment was more conservative with respect to the term for payment of labor creditors, has on other occasions been more flexible in this regard, as in the case of Interlocutory Appeal No. 2134208-86.2020.8.26.0000, for which the reporting judge was Appellate Judge Grava Brazil. Considering the peculiarities of the specific case, the São Paulo court admitted in this judgment extension of the one-year term established by article 54 of Law No. 11,101/05. This same appellate decision also addressed another recurring topic in the discussions related to control of the legality of the judicial reorganization plan, which is the possibility of applying a discount on labor claims, admitting, in this case, a discount of 50% from the claims.

Also noteworthy is the recent case of the judicial reorganization of the Renova Group, in which the chief judge of the TJSP granted staying effects to the special appeal filed by the debtor in possession in Interlocutory Appeal No. 2026269-13.2021.8.26.0000, suspending the effects of a decision that, based on Ruling I of the Group of Chambers Reserved for Business Law of the TJSP, established the starting point of payment of labor claims as of the end of the stay period.

Such is the importance of these issues that the reform promoted by Law No. 14,112/20 introduced paragraph 2 into article 54 of Law No. 11,101/05. Firm in the purpose of seeking a vision that conciliates the protection of labor creditors with a margin of availability that benefits effective restructuring, paragraph 2 of article 54 provides for the possibility of extending the payment period for labor creditors by up to two years, provided that:

• sufficient collateral has been provided;
• the proposal has been approved by the majority of the labor creditors; and
• full payment of the labor claims is guaranteed.

In cases involving qualified labor creditors, the TJSP has also indicated the possibility of establishing discounts and limitation on amounts for the payment of labor claims, as illustrated by Interlocutory Appeal No. 2231529-24.2020.8.26.0000, taken from the in-court reorganization of Odebrecht.

Negotiation initiatives involving labor claims are not restricted to the scope of the plan: in some cases there are campaigns for out-of-court settlements involving labor claims, as in the judicial reorganization of the Atlântico Sul Shipyard - case number 0000162-07.2020.8.17.2730, in progress before the 1st Civil Court of the Judicial District of Ipojuca/PE.

Another very significant example of this new vision incorporated into the treatment of labor creditors is the possible assignment of claims derived from labor legislation. This is an option that opens new horizons for labor creditors, with possible gains in liquidity, which acquires relevance in the midst of the pandemic and in times of economic recession.

Although Law 11,101/05 did not prohibit assignment of the claim, the (now repealed) article 83, paragraph 4, pertaining to bankruptcy, but sometimes applied by analogy to judicial reorganizations, represented a true disincentive for the practice, by providing that labor claims assigned to third parties would be considered unsecured. This condition resulted in damage to the labor creditors themselves, since it devaluates the claim of those who, in an inferior position, many times had in the assignment of their credits the opportunity to carry out faster recovery of funds. Law No. 14,112/20 repealed this provision, which should attract the increasing appetite of investors for receivables, considering the priority of labor claims in the competition of creditors, now maintained even after assignment.

In this regard, it is also worth mentioning the very recent decision by the Superior Labor Court (TST) in the judgment of AIRR - 820-23.2015.5.06.0221, rendered by Justice Douglas Alencar Rodrigues, which indicates the possibility of assignment of labor claims. Although in this case the claim of the purchaser of the receivable was not granted, due to merely procedural issues, the Justice pointed out that "the assignment of labor receivables is fully possible," referring to the innovation introduced by Law No. 14,112/20. This represents a great advance if we consider the strong reservations that the labor courts have always maintained in relation to this type of negotiation.

Another quite innovative aspect of Law No. 14,112/20 is the possibility of labor claims being submitted to out-of-court reorganization, which was prohibited in the original wording of article 161, paragraph 1, of Law No. 11,101/05. There is, therefore, one more vote of confidence given by the legislator to private negotiations involving labor claims, including in an environment subject to greater freedom, if compared to the judicial reorganization and bankruptcy arrangements. It is important to remember, however, that the negotiation with the workers in the scope of the out-of-court reorganization requires participation by the labor union of the category.

It is noticeable that the legislation and case law have been proposing a general change of paradigm that projects new perspectives for in-court and out-of-court reorganizations and bankruptcies in the treatment of labor claims under Law No. 11,101/05. Although it is still too early to assess the practical result of all these innovations, it is certain that this movement results from a perception by operators of the law that the traditional structures were not sufficient to solve the complex conflicts that emanate from relations between employees and insolvent companies. In any case, it seems clear that the trend is to get everyone, including those who did not do so or who did so with greater limitations, to actually be brought to the table to negotiate concrete solutions for the recovery of their claims.