FGTS withdrawal: worker who is unable to withdraw will have a new path to court; see what changes

The number of companies that do not deposit employees' FGTS on time has increased in Brazil. The Superior Labor Court (TST) changed the rule on which Court should judge actions related to the withdrawal of the Service Time Guarantee Fund (FGTS). Based on the new guidance, what will define the procedural path is the reason why the worker wants to withdraw money from the Fund. ? FGTS is a worker’s financial reserve. Every month, the company deposits 8% of the salary into an account in the employee's name. Withdrawal is only permitted in situations provided for by law, such as unfair dismissal, retirement and purchase of your own home. In practice, requests related to the end or suspension of the employment contract, such as unfair dismissal, indirect termination, agreement between employee and employer or termination of the company's activities, will continue to be analyzed by the Labor Court. Situations in which the withdrawal can be made for a reason that does not depend on the employment relationship, such as serious illness, retirement, housing financing or public calamity, must be discussed in ordinary courts. The decision was taken during the trial of an incident of repetitive appeals, a mechanism used to standardize the courts' understanding of issues that are repeated in thousands of processes. With this, the TST changed a position that had been adopted for years by the Court itself and sought to end a disagreement with the Superior Court of Justice (STJ). ?? The change does not alter the FGTS withdrawal rules. The situations in which money can be withdrawn remain exactly the same as those provided for in the legislation. What changes is where the legal action should be taken when there is an impasse and it is necessary to go to court. According to the TST itself, the main practical consequence of the decision is to bring more legal certainty and eliminate doubts about which branch of the Judiciary should judge each case. Understand the decision The judgment dealt with an issue that has generated disagreements in the courts for years: who should analyze requests for withdrawal from the FGTS when the worker needs a court decision to release the resources. Until then, the predominant position in the TST was that practically all actions involving movements of the FGTS should be processed in the Labor Court. The STJ, on the other hand, argued that many of these cases fell within the jurisdiction of the common courts. When reevaluating the topic, the Labor Court separated the possibilities of withdrawing the FGTS into two groups: The first brings together situations directly linked to the employment contract. This is the case of unfair dismissal, indirect termination, termination by agreement between employee and employer and the extinction of the company, for example. In these situations, the release of resources depends on the analysis of labor issues. Therefore, the jurisdiction remains with the Labor Court. The second group encompasses situations in which the right to withdrawal does not depend on the analysis of the employment relationship. This list includes cases such as retirement, serious illness, worker death, housing financing and public calamity. For the TST, in situations in the second group, the judge does not need to decide labor issues or analyze the employment contract. Just check whether the person meets the requirements set out by law to operate the FGTS account. Therefore, these cases must be judged by ordinary courts. As the decision changes a position that was already consolidated in the TST itself, the ministers established a transition rule to avoid losses to the parties. The cases that had already received a ruling on the merits until the publication of the ruling will continue in the Labor Court until the end, including during the execution phase. The remaining processes will follow the new rule defined by the court. Service Time Guarantee Fund (FGTS) Superior Labor Court