The provisional enforcement in the Labor Law is only allowed until the attachment. If there is the appointment of property it is not possible to determine the attachment of money, since it is unquestionable right of the debtor that the enforcement happens in a less onerous way.
This was the understanding of the Superior Labor Court (TST) which unanimously decided to grant the appeal of the company Braskem S/A in order to determine that the provisional enforcement of a labor award occurs without the attachment of money or online blockade.
The company, in the provisional enforcement, designated 300 tons of commercial caustic liquid for attachment. Each ton was valued on the amount of R$ 642.00, however the claimant did not accept alleging that the item was very specific and difficult to auction. Therefore, the judge of the Labor Court of São Paulo determined the online attachment of the updated value of the enforcement.
The company filed a writ of mandamus to the Regional Labor Court of the 2nd Region (TRT-SP) alleging an offense against its unquestionable right, since the act was contrary to article 620 of the Code of Civil Procedure (CPC) and to the item III of Precedent No. 417 of the Superior Labor Court (TST), which determine that the enforcement is done by the less onerous way for the debtor.
The TRT-SP denied the writ of mandamus filed by the company alleging that the decision was in accordance with articles 475-O (which imposed strictest rules for the provisional enforcement) and 655 of the CPC, which establishes the order of preference for enforcement, where money comes first.
The company then appealed to the TST and insisted on its claims and obtained the support of the reporting judge minister Alberto Bresciani.
Based on Precedent No. 417, the minister explained that in the provisional enforcement, the decision to attach money when other items are designated offends the unquestionable right that the enforcement is carried out on the way that is less severe for the debtor.
The reporting judge also noted that, in this case, the CPC may not be used as a subsidiary source since its application only occurs in case of failure of the CLT, which is not the case.
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