INSS: STF returns to judge special retirement – 06/26/2023 – Market

The STF (Federal Supreme Court) has returned to adjudicate the case that deals with the constitutionality of the special retirement rules of the INSS (National Social Security Institute) after the Social Security reform, which came into effect on November 13, 2019.

Ministers must decide whether the institution of a minimum age for special retirement, the end of the possibility of converting special time into common and the change in the rule for calculating the benefit violate the Constitution or not.

The questions are part of the ADI (Direct Action of Unconstitutionality) 6,309, proposed by the CNTI (National Confederation of Workers in Industry). The process began to be judged this year, but was paralyzed after a request for a view from Minister Ricardo Lewandowski, now retired.

The request for review is a request to further analyze the case before casting your vote. The trial, which began on Friday (23), is held in the virtual plenary of the Supreme Court. With that, the deadline for ministers to cast their votes and for a conclusion to be reached is Friday (30).

The rapporteur for the process is Minister Luis Roberto Barroso, who has already voted for the constitutionality of the measures, as he did for 12 other ADIs on the reform, which began to be judged in 2022 and are paralyzed in the Supreme Court. Lewandowski had also requested a view of these actions.

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.

Lawyer Fernando Gonçalves Dias, who defends the CNTI in the Supreme Court, says he believes that the reporting minister may change his vote. “Minister Barroso’s vote is a vote that demonstrates a very great concern with the actuarial issue, with finances, but it is not in harmony with the court’s own jurisprudence, constituted in three major themes”, he says. “I believe and hope that [mudança de voto] from Barroso.”

One of the three major themes referred to by the lawyer, number 709, dealt with the worker’s permanence in the special activity after retirement —denying the right— brought the understanding that this type of benefit has, in fact, a shorter contribution time than than in ordinary retirements, in order to preserve the health of professionals exposed to harmful agents for years.

For Gonçalves Dias, if the Supreme Court validates the reform rules, it will be practically extinguishing special retirement. This is because the insured person will need to have a minimum age to retire, which will make him remain in the labor market for longer —the main measure of the Social Security reform—, but in an activity that causes damage to his health.

“Today, this retirement is worse than the common retirement. A worker who carries out his activity in a common area, in the transition of the reform, manages to retire without a minimum age. The reform treated the unequal with inequality”, he says.

The lawyer made a prominent request for the matter to be judged in the physical plenary of the STF. With this, there may be a broader discussion on the subject, since those involved will be able to make oral support. “I have demonstrated that this pension is a residual pension, there are few beneficiaries.”

How is the special INSS retirement?

Until the Social Security reform, special retirement was granted to workers with 15, 20 or 25 years of exposure to agents that put their health at risk, 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.

What is the minimum age for special 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

What is the minimum score for special retirement in the transition rule?

For those who were already in the job market before the approval of the Social Security reform, there are transition rules by points. In this case, it is necessary to add the contribution time with age, according to the minimum time and the degree of activity performed.

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

What will the Supreme decide in ADI 6,309?

The Supreme must define three points in the action that is on trial:

Minimum age: Policyholders who retire in a special area after retirement must be of a minimum age, in addition to the minimum contribution time. As a result, even if they reach, for example, 25 years of exposure in a light risk area, they cannot retire if they are not at least 60 years old. A young person who starts working at the age of 18 in the special area, completes 25 years of exposure to harmful agents at the age of 43, but will only be able to retire at 60 and, throughout this period, will work putting his health at risk.

Conversion of special time into common: Until the Social Security reform, those who worked in a special activity only for part of their working life could convert this special time into common, earning a bonus in the conversion. For men, common time is multiplied by 1.4 and for women by 1.2. A woman who worked ten years in a special area is entitled to add 12 years of ordinary time.

Calculation of special retirement: Before the reform, special retirement paid a benefit that was 100% of the insured person’s average salary, without any reduction. After the reform, the calculation of this benefit becomes the same as for the others: 60% of the average salary plus 2% for each extra year worked beyond the minimum time. To be able to receive 100% of the average salary, the professional in a special area —as well as the others— will have to work for 40 years.

What is special retirement?

Special retirement is a benefit granted to the insured person who works in conditions that are harmful to health or physical integrity. It is due to anyone who has a contract signed under the CLT (Consolidation of Labor Laws) regime, to the individual worker and to the individual taxpayer if he or she is a member of a work or production cooperative. In addition, exposure to harmful agents must occur on a permanent basis.

In practice, it is a benefit that anticipates the retirement of workers who have their health compromised by being in a harmful area. This anticipation works as a protection for the professional.

Who is entitled to special retirement?

All professionals who demonstrate work in constant exposure to harmful chemical, physical, biological agents or association of agents harmful to health for a minimum period of 15, 20 or 25 years are entitled to the benefit. For those who were already in the job market before the Social Security reform, it is necessary to combine contribution time with age and reach the minimum required score. For new policyholders, there is a minimum age to retire.

What are the harmful agents that guarantee special retirement?

These are biological, chemical, carcinogenic agents, noise, heat and ionizing radiation, among others, which may be present in the following activities:

• Chemical
• Technician in analysis laboratory
• X-ray technician
• Nurse
• Doctor
• Graphic
• stevedore
• Miner
• Metallurgical

What is the special common time conversion?

Before the Social Security reform, the professional who worked part of his life under conditions of vulnerability, dangerousness or unhealthy conditions, but later changed professions and started to work in an area without risk could convert the time of special contribution in common.

For this, a table was created, in which the citizen multiplies the time in which he worked in a special activity by the conversion factor, according to the risk. After the reform, the conversion of special time in common applies only to work carried out until November 13, 2019. With this, the years worked in special activity will be counted as common work time.

ACTIVITY RISK

time to convert	Woman	Man
low risk	1.2	1.4
medium risk	1.5	1.75
high risk	two	2.33

How to prove special time to the INSS?

Proof of exposure to harmful agents is done by presenting documentation attesting to the activity. The form used today is the PPP (Professional Social Security Profile), based on the LTCat (Technical Report on Environmental Working Conditions), which is issued by an occupational physician or occupational safety engineer. The PPP became required in 2004.

Until December 31, 2003, there are other forms valid according to the season. Look:

Form	Period it was issued
Dirben-8030	Between 10/26/2000 and 12/31/2003
DSS-8030	Between 10/13/1995 and 10/25/2000
DISES BE 5235	Between 09/16/1991 and 10/12/1995
SB-40	Between 08/13/1979 and 10/11/1995

How to apply for special retirement in My INSS?

The order can be made by telephone, through call center 135, which is open from Monday to Saturday, from 10am to 10pm. At other times, there is automatic service, without it being possible to speak with an attendant.

The insured person can also make the request through the Meu INSS app or website. To do so, you must have a password for the Gov.br portal.

1. Login My INSS
2. Enter CPF and password
3. Under “New Order”, enter the name of the benefit you want. In this case, it will be retirement for contribution time
4. Confirm the personal data or correct what needs to be updated, then go to “Update”
5. Click “Next” and “Continue” and then and next again
6. Respond with “Yes” or “No” to the questions that follow and click “Next”
7. It will be necessary to inform if you already receive any retirement or pension and if the INSS can change the start date of the benefit to another date, if it is more beneficial
8. Scroll down the page and attach the documents regarding the special activity. To do this, click on the plus sign, which reads “Evidence of the exercise of special activity”
9. Finalize the order and write down the protocol; all requests will be made remotely, and can be checked on My INSS

It is important to gather all the documents before applying for the benefit. Send photos of the work card and forms that prove the special time. This benefit takes a little longer to come out, because it needs an analysis by the Social Security expert doctor.