STF ruling facilitates collection of union contributions, say centrals

The trade union centrals celebrated the publication of the ruling of the Federal Supreme Court (STF) that authorized the collection of union dues from non-unionized workers.

Published on the 30th, the text, which describes the full votes of the eleven ministers, establishes that the fee may be charged to all employees in the category, “as long as the right to object is ensured”. This was the understanding of rapporteur Gilmar Mendes in the Court’s judgment, held in September.

In the assessment of Clemente Ganz Lúcio, coordinator of the Forum of Union Centrals, the thesis defined by the Supreme Court balances the issue of financing unions. “The STF acted correctly in establishing the right to contribute in return for collective bargaining,” he told People’s Gazette.

In practice, the union may include the union fee in salary negotiation clauses to be approved at the categories’ annual meeting. The main benefit, for the central coordinator, is the “guarantee of legal security” for collection by unions and companies, which make compulsory collection of contributions on workers’ payrolls.

Currently, according to data from the Forum, there are more than 40 thousand collective agreements in force in the country with the charging device, which now, according to Ganz, have less chance of being questioned in court.

Judgment does not modulate the effects or regulate contribution rates

Antônio Galvão Peres, from Robortella e Peres Advogados, does not believe that the situation is pacified as the centers say. “There will probably be new embargoes on the Supreme Court’s decision, since the ruling did not resolve the main doubts raised after the trial,” Peres told Gazette.

The ruling does not mention, for example, the obligation to use resources only for the collective agreement – ​​which, by definition, is the objective of the negotiating contribution.

In Galvão’s understanding, these aspects go against article 611-B of the Consolidation of Labor Laws (CLT), which explicitly prevents worker rights from being suppressed or reduced through a collective agreement. “There is a direct incompatibility of the CLT with the Supreme Court’s statement”, he highlights.

The STF, highlights the lawyer, did not even modulate the effects over time, to know whether the retroactive charges are valid. Nor did it establish a limit for the rate to assess whether the benefit obtained by the union has a fair correlation with the assistance contribution charged.

After the decision, several cases of abuse by unions were reported, such as retroactive charges for the last five years and setting amounts corresponding to three times the value of the old union tax.

A union in Sorocaba (SP), after a collective agreement, began deducting 12% of the assistance contribution per year from the salary or demanding the payment of a fee of R$150 from anyone who does not want to pay the contribution.

Barroso’s vote opens a loophole to limit the right to oppose

The right to opposition by workers, a central point of the agreement’s thesis and historically hampered by many unions – with tight deadlines and restrictive conditions to express refusal –, was also not detailed in the judgment.

The point was the subject of protests and controversies that erupted across the country after the STF judgment. In Espírito Santo, kilometer-long queues formed in front of the Union of Workers in Hospitals and Health Companies (Sintrasades) to refuse the payroll deduction. Workers reported having braved sun and rain to deliver a letter contesting the fee for the assistance contribution.

At the beginning of October, a 1% discount on the direct salary on the payroll of public servants in the Federal District also generated outrage. Sindser gave five working days to anyone who wanted to deauthorize the charge, in person, causing queues and embarrassment.

With the publication of the ruling, Galvão believes that the traditional form of contestation, via letter, is in question, as the union can restrict the right only to the assembly to approve the collective agreement.

“Part of Minister Luís Roberto Barroso’s vote provides an opportunity for trade unionists to consider the assembly the only appropriate forum to exercise their right to oppose”, he explains.

“The assembly is called with a broad guarantee of information regarding the charge and, on that occasion, the worker is allowed to oppose that payment”, wrote the minister. In practice, if the assembly approves, “the worker will have no way of opposing it”, argues Galvão.

Superior Labor Court guarantees the company’s right to oppose

A recent decision by the Superior Labor Court (TST) sheds light on the possibility of appeal by workers who feel harmed by the charge.

Based on the same argument as the STF, the Court accepted the appeal of a construction company that claimed that its right to object to the rates established by the Union of Workers in the Construction and Furniture Industries of Gramado (RS) had not been respected.

The TST’s decision established that the charging of “welfare contributions to a company not associated with the category’s union without respecting the right to opposition violates freedom of association and unionization, as determined by the Federal Supreme Court”.

It was the first time that the Labor Court applied the right to opposition thesis in a decision. The precedent can be used by workers and companies that have had their refusal made difficult by unions, as explained by lawyer and labor consultant Ricardo Calcini to the website Legal Adviser.

In the case of labor lawsuits, companies may be forced to return the amounts deducted from workers’ payroll. Therefore, the ideal for companies is to transfer the union contribution via judicial deposit until the matter becomes final and unappealable in the TST.

Senate can regulate the right to oppose

A project currently being processed in the Senate intends to regulate the issue and make it easier for workers to challenge union contributions. As rapporteur for the project, originally proposed by senator Styvenson Valentim (PODE-AC), senator Rogério Marinho (PL-RN), included a proposal to regulate the right to object.

The idea is to reduce bureaucracy in the ways in which charges can be challenged, which can be done electronically. “We are envisioning how to exercise this right in a simplified way. Through a simple email or WhatsApp message, for example,” the senator told People’s Gazette.

Marinho, who was the rapporteur of the 2017 labor reform that abolished the union tax, had already classified the STF’s decision as “wrong” and “a setback”, after the judgment in September. After the ruling, he reinforced his criticisms.

“[O STF] did not foresee minutiae. See that the unions claim that assemblies with a very low quorum – for example, 2% or 3% of the category – can approve the discount for everyone. But this, in addition to violating the constitution, violates the CLT provision, provided for in labor modernization, which ensured individual, prior and express option”, stated Marinho.

“We are talking about a food allowance, a salary deduction. An individual right provided for in the Constitution that cannot be freely distributed by an assembly with low representation”, highlighted the senator.

The project, approved by the Senate’s Economic Affairs Committee (CAE) at the beginning of October, also prohibits the mandatory collection of any union contribution without the authorization of the worker, even a union member.

The employer must inform the employee in writing of the amount of the assistance fee charged and inform the worker about the right not to join a union and not pay the contribution. The only senators against the proposal were those from the PT: Jaques Wagner (BA), Paulo Paim (RS) and Teresa Leitão (PE).

Background is the lack of union freedom

In Senator Marinho’s assessment, the project can contribute to a scenario of union freedom, hampered by the Constitution, which provides for a system of just one union per professional category.

“Brazil has always avoided debating this fundamental principle of the International Labor Organization, because our Constitution provides for monopolies. It is a jabuticaba that should be reformed by PEC, but that the current government, with its anti-reform bias, does not even want to study. If we are In this universe of monopolies and lack of choice, we will protect the worker. That’s why the right to individual opposition is fundamental”, he stated.

Under consideration by the Social Affairs Committee (CAS), the project is being reported by Senator Paulo Paim (PT-RS), who is in no rush to put the issue to a vote.

The Commission approved for November 21st the holding of a public hearing with the presence of trade unions and experts. If approved, the project goes directly to the Chamber of Deputies, without going through the plenary of the Federal Senate.

The centers promise to work to block approval. Ganz Lúcio states that the project provides for “a right of eternal opposition”. “The only thing left to do is put on your birth record that you never need to pay a union in your life. What exists is a game that insists on breaking the unions,” he says.

Marinho, who is leader of the opposition in the Senate, refutes the criticism. “The unions that work in favor of workers are doing very well, thank you. They have gained members and shown results. Unfortunately, the world of mandatory union contributions, which was in force until 2017, has not yet fully adapted. It is necessary to convince the worker that they are next to him. It must be shown that the intention is not just to collect. I return with another question: union unity, a jabuticaba, is no longer enough, do they still want to take away the worker’s freedom to decide?” questions.