STF may release mandatory financing of unions by workers

While the government of Luiz Inácio Lula da Silva (PT) awaits the “best moment” to present the project that resumes the Trade Union Tax, given the negative impact of the measure, the Federal Supreme Court (STF) is about to restart the discussion on the compulsory assistance contribution for non-unionized workers. In practice, this is a new deduction from the paycheck of all workers.

The judgment should take place between September 8th and 15th in the virtual plenary of the Court, a system in which each minister can register his vote during a certain period. The analysis had been interrupted in April by a request for a view from Minister Alexandre de Moraes. The current score is five votes in favor of charging, that is, the Supreme Court is one vote away from forming a majority.

Experts see the STF’s endorsement of the compulsory assistance contribution with reservation, which goes against the freedom of association provided for in the labor reform, in 2017. “The new law vetoed the collection of any compulsory contribution, without the prior and express authorization of workers This should apply to all rates”, understands labor lawyer Camila Machado, from Sonia Marques Dobler Advogados.

Luiz Alberto Meirelles de Azevedo, from the De Vivo Castro, Cunha e Whitaker Advogados law firm, says that there has been a “turnaround in the STF’s understanding”, warning of the previous jurisprudence on the case. “There was already an understanding about the case. The CLT clearly states that any discount or charge needs the worker’s authorization”, highlights Azevedo.

Supreme changes understanding of contribution

Still in 2017, shortly before the labor reform that extinguished the mandatory Union Tax, the Supreme itself had reaffirmed its understanding that the collection of assistance contributions was unconstitutional.

The unions appealed with motions for clarification against the Supreme Court’s decision, which began to be judged in the Court’s plenary session in June last year. The rapporteur of the case, Minister Gilmar Mendes, who had been against the charge in the past, changed his position.

According to him, the vote had been cast before the labor reform, at a time when the union tax was in force. Mendes accepted the argument of minister Luís Roberto Barroso, who defended the charge, provided there is the so-called “right of opposition”. That is, that the worker has the option to decide whether he wants to pay or not.

“The understanding of the constitutionality of the so-called assistance contributions, respecting the right of opposition, provides workers and unions with an instrument capable of recomposing the financial autonomy of the union system, realizing the right to union representation without, at the same time, harming union freedom of association “, justified in a note, at the time, the minister.

Gilmar Mendes’ vote was accompanied by Carmen Lúcia, Dias Toffoli, Edson Fachin. Barroso also voted in favor of charging, with the caveat regarding the “right of opposition”. Now, with the resumption of the trial, Alexandre de Moraes will be the first to vote.

The STF will still have to decide whether or not to consider the vote of former minister Marco Aurélio Mello, who in the first vote was against the charge, following the position initially adopted by the rapporteur. André Mendonça, who replaced Marco Aurélio from December 2021, may be called to vote.

Financing of trade unions is a background

The resumption of the trial takes place after the reactions to the Lula government’s proposal to implement a new union tax. According to the proposal, which may be presented to the Chamber in September, the new rate would be linked to wage readjustment agreements brokered by unions and limited to up to 1% of the worker’s annual income, to be deducted directly from wages, including non-union members.

That means a value of up to three and a half days of work, according to experts. Two thirds of the collected amount would be destined to the unions, and the remainder distributed among the labor confederations. Workers and employers reacted and the government withdrew temporarily, but did not give up on the proposal.

For Hélio Zylberstajn, senior professor at FEA-USP, the issues are interconnected. After the reform, the entities needed to seek new ways to compensate for the extinction of the mandatory union tax and make use of the contribution categories provided for in the Consolidation of Labor Laws (CLT). The assistance fee falls into the category of “Negotiations”, which must be defined by Agreements or Conventions. “The unions outlined survival strategies and emphasized the collection of contributions”, says the professor.

Fee approval may lead to litigation

Azevedo also explains that the assistance fee, which was not charged every year and not by all unions, became one of the main sources of revenue. According to a survey carried out with the entities, the recurrence and the values ​​increased a lot. “There are cases of reaching 1% of the worker’s salary”, he reveals.

For the lawyer, the possible authorization of the STF for the collection of the new fee can generate a huge litigation of lawsuits in Justice, since the right to opposition, in practice, does not exist. According to him, the appeal criteria are determined by the unions themselves and do not “meet the principles of reasonableness”.

These are usually short deadlines and unenforceable requirements. There are cases in which they ask for a letter signed in their own hand, to be filed in person on a day and at an appointed time, often at meetings. “Everything to make the exemption process difficult for workers who do not agree with the taxation”.

Furthermore, it may be one more argument against the recreation of the Union Tax, since there cannot be two different contributions for the same purpose. “Although the values ​​and criteria are different, the nature of the contribution will be the same”.

For Zylberstajn, the underlying problem remains the unions’ captive market, established by union unity. “In a scenario of multiplicity and trade union democracy, where the worker chooses the union that represents him, there would be no contestation to compulsion”, she says.