Gilmar changes vote on union financing – 04/21/2023 – Market

Minister Gilmar Mendes, of the STF (Supreme Federal Court), changed his understanding in a lawsuit on assistance contributions to unions and started to defend that this charge can also be applied to non-unionized workers – provided that the right to oppose is guaranteed.

The change occurred in the judgment of embargoes (appeals) on a STF decision that had declared the unconstitutionality of the mandatory assistance contribution to employees not affiliated to unions.

The topic is under analysis by the virtual plenary of the STF. The prediction was that the trial would end on Monday (24), but there was a request for a view from Minister Alexandre de Moraes. By regulation, he has 90 days to return the process.

The assistance contribution is the one that finances the collective negotiations carried out by the unions. It differs from union contributions (pays for the union system) and confederative contributions (pays for the top of the union system).

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 union contribution to non-associated workers is constitutional, and can be instituted by collective agreement or convention, provided that the employee is allowed to oppose the charge.

Barroso’s argument was accepted by Gilmar. In addition to the two, minister Cármen Lúcia followed the same understanding.

“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.

Therefore, the maintenance of its previous understanding would bring the risk of weakening the union system in the country, continued the minister.

“Bearing in mind that the assistance contribution is primarily intended to fund collective negotiations, which affect all workers in the respective professional or economic categories, regardless of affiliation, I understand that the solution brought by Minister Roberto Barroso is more adequate for the solution of controversial constitutional issue to be considered”, said the rapporteur.

He also added that the worker’s right to object to the charge “prestiges freedom of association”.