INSS: STF postpones decision on special retirement – 06/30/2023 – Market

A prominent request made by minister Dias Toffoli on Thursday night (29) postponed the decision of the STF (Federal Supreme Court) in the action that discusses the changes in the special retirement rules of the INSS (National Social Security Institute) after the 2019 pension reform.

The highlight will cause ADI (Ação Direta de Unconstitutionality) 6,309 —which questions the minimum age requirement for special retirement, the end of the possibility of converting special time in common and the change in the rule for calculating the benefit— to be judged in the physical plenary. The trial, which will start over from scratch, has no date.

The decision on the constitutionality of the rules began on Friday (23) and should end this Friday (30), because it was taking place in the virtual plenary. There are two votes in favor of the reform and one against. The favorable votes are from Minister Luís Roberto Barroso, rapporteur of the case, and Gilmar Mendes, who accompanied the rapporteur. The opposite vote is from Edson Fachin, who decided for the unconstitutionality of the measures.

In his report, Barroso points out, among other points, concern about public spending as a result of the population’s greater life expectancy and says that the Social Security reform follows similar rules valid throughout the world.

“The establishment of a minimum age to enter into inactivity early –that is, before the time required of workers in general– is not exclusive to Brazil. Quite the reverse: this has already been a reality in several countries for a long time, with a global trend that special retirement regimes become more and more exceptional or even disappear”, said the minister.

The action was filed by the CNTI (National Confederation of Workers in Industry) in February 2020. For lawyer Fernando Gonçalves Dias, responsible for the process, the minimum age requirement for this benefit does not bring savings to Social Security because it is a small number of workers entitled to special retirement.

Gonçalves Dias celebrates the outstanding request because, for him, the judgment in the physical plenary guarantees a better debate on the issue. As the new trial will start from zero, there will be oral support from the defenses and justices can change the votes that have already been given, if they want.

Gonçalves Dias also believes that Minister Rosa Weber, president of the court, should address the issue before her retirement, starting in October, when she will turn 75.

Adriane Bramante, president of the IBDP (Brazilian Institute of Social Security Law), who acts as a “friend of the court” in the process, sees the outstanding request as a “hope” for those awaiting a decision.

“This reopens hope that we will at least get a bigger debate. We are now going to do all the work, which we have already done, we have already delivered memorials, but we are going to reinforce with the ministers who have not yet voted to see if we can convince them of the unconstitutionality of the actions in relation to the conversion of time, the minimum age and the calculation”, he says.

“Who knows, maybe we can even change these changes brought about by amendment 103 with regard to special retirement”, he adds.

Action on death pension was defeated by policyholders in the STF

The STF ruled for the constitutionality of the death pension reform rules. The result of the trial, which ended on June 23, was published on Monday (26). Most ministers followed the rapporteur, Luís Roberto Barroso, approving the reduction in the INSS pension established by constitutional amendment 103.

Under the rule, those who become widowed are entitled to receive 50% of the benefit of the insured person who died, if retired, or of the disability retirement to which the insured person would be entitled, plus 10% for each dependent, up to a limit of 100%.

A widow without children, for example, is considered dependent on the insured person and, therefore, receives a minimum amount of 60% on the pension of the insured person who died or his disability retirement, for deaths from November 2019, when the reform took effect.

The rule was questioned by Contar (National Confederation of Salaried and Salaried Rural Workers) in ADI (Direct Action of Unconstitutionality) 7051. For the association, there is damage to the widow of the insured person who died before retiring, since the pension would be paid on the amount of a simulated retirement.

Understand the INSS SPECIAL RETIREMENT

Until the Social Security reform, special retirement was granted to workers with 15, 20 or 25 years of exposure in unhealthy areas, with no minimum age to apply. After the reform, there is a minimum age for those who entered the labor market after November 2019. Those who are already active have a transition rule, with a minimum score.

The reform changed the calculation of this benefit —and the others—, implemented a minimum age for INSS retirements and ended the conversion into common time for activity carried out after the reform, which, before, guaranteed a bonus in the contribution period for those who did not he had worked the whole period in special activity.

MINIMUM AGE FOR SPECIAL RETIREMENT AFTER RETIREMENT

This rule is valid for policyholders who entered the labor market after publication of the Social Security reform. The others, who were already contributing to Social Security, can retire under the transition rules, which have a minimum score.

Special time required to retire	Minimum age
15 years	55 years
20 years	58 years old
25 years	60 years

MINIMUM POINT RULE IN SPECIAL RETIREMENT

For those who were already in the job market, there are transition rules by points. In this case, it is necessary to add the contribution time with age.

66 points
For activities that require 15 years of effective exposure

76 points
For activities that require 20 years of effective exposure

86 points
For activities that require 25 years of effective exposure