FGTS review: see how much you can earn – 04/20/2023 – Market

The STF (Federal Supreme Court) may judge this Thursday (20) the action known as review of the FGTS (Fundo de Garantia do Tempo de Serviço), which will define whether the use of the TR (Referential Rate) as a fund correction index it is constitutional.

The case, which has general repercussions and should apply to all similar processes in the country, is on the agenda of the day as the first to be debated by ministers. This is the fourth time that the FGTS review can be judged. Before, it was scheduled in 2019, 2020 and 2021.

Today, workers’ money in the FGTS is fixed at 3% plus TR, which yields close to zero. ADI (Direct Action of Unconstitutionality) 5,090 asks that an inflation index be used, which can be the IPCA-E (National Consumer Price Index – Special) or the INPC (National Consumer Price Index).

The case reached the Supreme Court in 2014, after a study commissioned by the Solidarity party and by Força Sindical pointed out a loss of 88.3% on the money deposited in the FGTS from 1999 to 2013. The year 1999 was chosen as a milestone because that was when the TR passed by modifications, which overthrew the correction.

Calculations requested by Sheet Experts point to losses that can reach almost 200% for amounts since 1999. The damage varies according to the amount of salary and time of employment. The difference between the TR and inflation rates over a ten-year period is 24%.

According to simulations by the Instituto Fundo de Garantia do Trabalhador, a professional who had an account with a balance of R$ 10,000 in January 1999 had a loss of R$ 66,100 with the correction by the TR in comparison with the INPC until March 2023.

SEE SOME EXAMPLES:

Situation	Balance with TR	Balance with INPC	Total loss	loss in percentage
Worker admitted in January 1999 working until March 2023, earning a minimum wage	BRL 24,269,	BRL 40,9270	BRL 16,658	68.64%
Domestic worker earning a minimum wage (currently R$1,302) from October 2015 to March 2023	BRL 9,734	BRL 11,795	BRL 2,061	21.17%
Worker who had an inactive account with a balance of BRL 10,000 from January 1999 to March 2023	BRL 33,979	BRL 100,089	BRL 66,110	194.52%

Cases of professionals assisted by lawyer Jéssica Ramalho, from the Roberto de Carvalho Santos Advogados Associados office, point to losses that can reach 43.52% for workers with salaries of around R$ 20 thousand.

At the request of Sheet, Jessica calculated three examples of situations in which professionals would have more advantage if the IPCA-E or INPC were applied. See the examples:

Case 1

The worker was an employee of a foundation between 2008 and 2020. His salary at the time was R$ 7,483.38. Currently, the professional’s FGTS balance is R$ 56,852.82. If the correction were based on the IPCA-E or the INPC, the balance would be almost R$ 20,000 higher. see the comparison

TR	IPCA-E	INPC	TR and IPCA-E difference	TR and INPC difference
BRL 56,852.82	BRL 76,039.73	BRL 76,411.42	33.75%	34.40%

Case 2

The worker has been employed by a public company since 2005 and was removed in 2021. The last salary was R$ 34,558.13. Currently, the FGTS balance is R$ 522,190.98. If the INPC or IPCA-E were used, it would have R$ 227 thousand more. See the comparison:

TR	IPCA-E	INPC	TR and IPCA-E difference	TR and INPC difference
BRL 522,190.98	BRL 744,233.16	BRL 749,445.89	42.52%	43.52%

Case 3

The worker has been an employee of a foundation since 2010. His salary is R$21,752.63 and the FGTS balance is R$228,162.49. If the money were corrected by the IPCA-E or by the INPC, the value would be R$ 84.4 thousand higher. See the comparison:

TR	IPCA-E	INPC	TR and IPCA-E difference	TR and INPC difference
228,162.49	BRL 312,578.54	BRL 313,420.65	37%	37.37%

Employees with a balance in their Guarantee Fund account are entitled to review their FGTS. If the revision is approved, experts estimate an impact of BRL 700 billion on Caixa Econômica Federal, the fund’s administrator. Calculations by the AGU (Attorney General of the Union), presented in 2014, point to a shortfall of R$ 300 billion.

What is the FGTS review?

It is a lawsuit in which the constitutionality of the correction of the money deposited in the Guarantee Fund is questioned. Today, the FGTS return is 3% per year plus the TR (Referential Rate), which yields close to zero. With this, the update of the money is below inflation, failing to replace the worker’s losses.

Since 1999, when there was a change in the calculation of the TR, workers accumulate losses. The review would correct these losses, which reached 88.3% by 2013.

Why is the correctness of money questioned?

The reason is that the TR, used to correct the fund’s money, has a very low yield, close to zero, meaning that workers are unable to replenish their purchasing power with the FGTS money balance.

In 2014, when the action started, a study by Força Sindical showed that a worker who had R$ 1,000 in 1999 in the Guarantee Fund had, in 2013, R$ 1,340.47. If inflation measured by the INPC, used in wage correction, were considered, the value should be R$ 2,586.44, a difference of R$ 1,245.97.

In defense of the greater correction, specialists claim that the FGTS money is income from the salary and cannot bring losses, as it is not an investment.

Who is entitled to the review?

All workers with money in the fund from 1999 onwards may be entitled to correction. According to Caixa, there are 117 million Guarantee Fund accounts between active and inactive.

Experts estimate that at least 70 million workers could benefit. It is possible for a worker to have more than one account, opened with each new job with a formal contract.

The expectation is that everyone will have their deposits corrected by the new rule from then on. To define issues such as the payment of amounts from previous years, for example, the STF will have to modulate the theme.

In modulation, it can be decided that Caixa should pay only those who filed a lawsuit until 2014 or until the date on which the judgment was scheduled or even only for those who are part of collective actions. It is necessary, however, to wait for what the Supreme Court will decide and how it will modulate the question.

What is FGTS and how does it work?

The FGTS works as a savings account for the worker. The fund was created in 1966, with the end of job stability, and came into effect in 1967. Every month the employer deposits 8% of the employee’s salary into an account opened for that job.

There is also a fine of 40% on the FGTS if the worker is fired without just cause. Since the 2017 labor reform, there is also the possibility of withdrawing 20% ​​of the fine after agreement with the employer upon dismissal.

Who is entitled to FGTS?

Every worker with a formal contract must have the FGTS deposited, which currently includes maids. Until 2015, there was no right to FGTS for this category.

The PEC das Domésticas, however, brought this possibility in 2013, but the law that regulated the measure and made it possible for employers to deposit amounts came into effect only two years later.

How do I know my FGTS balance?

The value can be consulted in the FGTS application, through the fund statement. It is also possible to obtain a copy of the statement at Caixa branches. For each company where the worker was hired, there is an open linked account. You need to observe the value in each account and add up how much you have, in all.

• Open or download the FGTS application (for the first access, you need to create an access password)
• Click “Enter Application”
• The phrase “FGTS would like to use Caixa.gov.br to log in” will appear; go to “Continue”
• Enter your CPF and click “Next”
• Enter your password and go to “Login”; If you don’t remember, click on “Recover password”
• On the home screen, information regarding the companies you worked for will appear.
• The balance of values ​​for the current company or the last company you worked for appears at the top of the screen; click on it to see the movements
• To save the data, click on “Generate PDF extract” and save it on your cell phone
• To see all the companies you’ve worked for, go to “View all your accounts”
• Click on each of the companies to open the statement; on each screen, the total balance will appear

How to withdraw my FGTS?

The FGTS can only be withdrawn in specific situations, according to the law, such as retirement, home purchase, dismissal without just cause or serious illness. In 2019, one more situation was added, which is the anniversary loot. However, those who opt for this modality cannot make the withdrawal-termination when leaving the job. Here are 16 situations:

1. Dismissal without just cause
2. End of temporary contract
3. Buying or building your own home
4. Amortization of home equity
5. In the birthday month for those who opted for the birthday withdrawal
6. Termination of contract due to bankruptcy or death of individual employer, domestic employer or nullity of contract
7. Termination of the contract due to reciprocal fault or force majeure
8. Retirement
9. Natural disaster, floods and emergencies
10. Suspension of part-time work
11. worker’s death
12. Age equal to or greater than 70 years
13. Worker or dependent with HIV
14. Worker or dependent with cancer
15. Worker or dependent with serious illness or in the terminal stage due to serious illness
16. If you stay outside the FGTS regime for three consecutive years