Contribution to union wins Fachin’s vote at STF – 04/24/2023 – Market

Minister Edson Fachin, of the STF (Federal Supreme Court), anticipated his vote this Monday (24) and followed the understanding of Gilmar Mendes in the action on the assistance contribution to unions.

They argue that the charge can be applied to non-unionized workers – as long as the right of opposition is guaranteed. Ministers Luís Roberto Barroso and Carmen Lúcia also voted in the same direction.

The assistance contribution is the one that finances the collective negotiations carried out by the unions. It differs from union contributions, which pay for the union system, and confederative contributions, which fund the top of the union system.

The issue was under analysis in the virtual plenary of the STF, but Minister Alexandre de Moraes requested a view (more time for analysis) last Friday (21), and the process was suspended. By regiment, Moraes has 90 days to return the process.

Fachin pointed out that he had already expressed a vote, in a physical plenary, in the sense that the assistance contribution is required from the entire category, regardless of affiliation.

Gilmar Mendes even changed his understanding of the case, in the judgment of embargoes (appeals) on a decision of the STF that had declared the unconstitutionality of the mandatory assistance contribution to employees not affiliated to unions.

In a first analysis, carried out in the virtual plenary of the STF in 2020, Gilmar had rejected the arguments presented in the appeals. He was followed by Minister Marco Aurélio (now retired), but at the time Minister Dias Toffoli asked that the case be taken to the full court.

There, there was a request for a view (more time for analysis) from Minister Luís Roberto Barroso.

When presenting his vote on Tuesday (18), Barroso brought the thesis that the assistance contribution by non-associated workers is constitutional, and can be instituted by collective agreement or convention, provided that the employee is allowed to oppose the charge.

“The assembly is called with the guarantee of ample information regarding the charge and, on the occasion, the worker is allowed to oppose that payment. He will continue to benefit from the result of the negotiation, but, in this case, the logic is inverted: as a rule, charging is accepted and, if the worker opposes it, it is no longer charged”, said the minister.

Barroso’s argument was accepted by Gilmar, but he did not mention in his vote the moment when the employee could express opposition to the charge. Minister Cármen Lúcia followed the understanding of the two colleagues regarding the right of opposition.

“Reflecting on the fundamentals of your vote, I understand that it is a case of evolution and alteration of the position initially adopted by me to adhere to those arguments and conclusions, due to the significant changes in the factual and legal premises on which I based the initial vote that I gave in these embargoes of declaration, mainly due to the changes promoted by the Labor Reform (Law 13.467/2017) on the way of funding union activities”, wrote Gilmar.

The minister —who reports on the action— also indicated that the change in the law that now requires express authorization for the collection of union dues has impacted the main source of financing for unions.