STF guarantees parity in police retirement; understand – 09/09/2023 – Market

Civilian police officers who completed the minimum conditions for retirement before the 2019 Social Security reform may have the right to full pay and parity, without the need to comply with transition rules introduced by different reforms, as established by complementary law 51, of 1985.

The decision was taken by the STF (Supreme Federal Court) in a case brought to court by a civil police officer from São Paulo in 2018 and applies to all cases of this type in the country. Comprehensiveness is the right to retire receiving the last active salary and parity guarantees retired civil servants the same adjustment given to working professionals.

In the thesis, after trial in the virtual plenary that lasted a week, from August 25th to September 1st, the court decided that “the civil police public servant who met the requirements for the special voluntary retirement provided for in law nº 51/85 is entitled to the calculation of their earnings based on the integrality rule and, when also provided for in complementary law, the parity rule, regardless of compliance with the transition rules specified in articles 2 and 3 of EC 47/05, as it falls within the exception provided for in article 40, § 4, item 2, of the Federal Constitution, as amended prior to EC 103/19, relating to the exercise of risky activities”.

The reason is that these professionals fall within an exception rule provided for in article 40 of the Constitution, which guarantees the right to different rules for those who carry out risky activities, as is the case with police officers.

According to lawyer Fernando Gonçalves Dias, from Gonçalves Dias Sociedade de Advogados, the ministers determined that the full amount must be paid to those who reach the minimum contribution time, without the need to meet the minimum age. However, in the case of parity, this benefit will only be guaranteed if there is a complementary law addressing the issue.

According to the 1985 law, which governs the retirement of civil police officers, civil servants will be able to receive the full benefit by proving at least 30 years of contribution, of which 20 must be active as a police officer, and women need 25 years of payments to the police. state pension, of which 15 must be active as a police officer.

“This topic 1,019 arose to clarify a controversy that arose before the regimes of the federated entities, which are the states, and also of the courts of Justice, which were creating a certain confusion due to constitutional amendment number 41, of 2003, which made a very big change in the regulation of public servants’ retirement”, says Dias.

The 2003 reform ended integrality and parity for new civil servants and determined a minimum retirement age for federal public servants.

“The Federal Supreme Court came to decide at a national level and say the following: the police officer and other employees in the security area, as provided for in the Constitution, and who are in risky activities, must observe only the requirements of the complementary law of 1985, until constitutional amendment 103”, says Dias.

Lawyer Adriane Bramante, president of IBDP (Brazilian Institute of Social Security Law), says that there was still a discussion about what constitutes completeness. “There was a discussion that, after the reform of amendments 41 and 47, the police officer would be entitled to a special pension based on the average of the 80% highest salaries from July 1994 to date”, she says.

In other words, professionals in the area would receive, in full, 100% of the average salary after a calculation that took into account the 80% highest payments since July 1994. However, the Supreme Court understood that the full amount provided for in the law must be applied 1985, which guarantees, upon retirement, the value of the last salary.

Adriane remembers, however, that the 2019 Social Security reform changed the rules. The main imposition of the reform was the establishment of a minimum age for all workers. Police officers who enter service after amendment 103 have a minimum age of 55 to apply for retirement. However, each state has its own rules for retiring police officers.

In São Paulo, the São Paulo pension reform was approved in 2020, coming into effect on March 7 of that year. For police officers who entered the career before 2003, there is completeness and parity as long as they serve five years in the position, level or class, among other requirements.

The case that reached the STF

The case that reached the STF in 2018 is that of a police officer from the city of Itanhaém, on the coast of São Paulo, who requested retirement with the rules of integrality and parity of the 1985 law. In the TJSP (Court of Justice of São Paulo), the civil servant gained the right to full pay, but lost parity.

Both she and SPPrev (São Paulo Previdência) appealed the decision. The police officer, in search of both benefits. SPPrev, asking for the entirety to be considered as 100% of the average salary, and not based on the last salary of the employee on active duty, and against parity. The server joined the state on April 6, 1992.