CRISTIANE GERCINA AND WILLIAN CASTANHO
SÃO PAULO, SP (FOLHAPRESS)
The decision by the STF (Supreme Federal Court) to release the assistance contribution left loopholes already used by unions. Entities even demand payment of the fee for the last five years.
There are also high percentage charges and obstacles to refusing payment. Experts consider the practices abusive.
On September 11, the court ruled that charging non-unionized employees is constitutional, if approved by the assembly. The right to object was guaranteed — that is, the discount can be refused.
According to lawyers, professors and jurists interviewed by Folha, to avoid legal uncertainty, the STF needs to modulate the decision. There are no rules on the amount, deadline and way to object, in addition to the risk of holding the employer liable.
If the doubts are not resolved, series of demands will reach the Labor Court. There will be public civil actions by the MPT (Public Ministry of Labor) against exorbitant clauses and labor complaints.
“We’re going to have a barrage of actions. We’re going to have people breaking down everywhere,” says Rogério Neiva, labor judge and former assistant judge of the Vice-Presidency of the TST (Superior Labor Court), the body responsible for collective negotiations. “If the Supreme Court had closed the package (modulation), it would have been resolved.”
When contacted, the STF did not comment. The court only stated that the issue could be addressed on appeal. The deadline for so-called embargos for clarification is 60 days after the publication of the decision.
Meanwhile, controversies spread. Unions are already resorting to practices condemned even by union federations, which have advised affiliated entities on how to proceed.
As Folha showed, in Sorocaba (SP), the collective agreement of the union of independent agents involves charging a 12% assistance contribution or a fee of R$150 for anyone who objects.
Now, domestic unions in Greater São Paulo, Jundiaí and Sorocaba have wanted payment since 2018. According to employers, the demand, via email and reports on websites, began two days after the Supreme Court’s decision.
“The union warns employers to immediately start making discounts”, says part of the message. There is a threat of “judicial recovery”.
A domestic employer in Jundiaí, who did not want to be identified, received the billing email. He says he has an employee who works as a caretaker and has opposed payment of the fee.
The employer states that he does not consider the attitude to be correct and emphasizes that he is not against union activity, as long as it is carried out in partnership.
The Jundiaí union covers 27 cities. The collective agreement, from January this year, determines a 2% assistance contribution, deducted every three months. The right to object to the fee can be exercised at any time.
In Sindoméstica-SP, a union in Greater São Paulo that encompasses 25 municipalities, the collective agreement defined a 2% assistance contribution, with a discount on salaries in four monthly installments.
The right to object lasted ten days from the signing of the convention, which occurred at the beginning of the year. Now, settlement negotiations are open until the end of September.
Nathalie Rosário de Alcides, lawyer responsible for Sindoméstica’s legal department, states that the entity’s understanding is that the retroactive assistance contribution for the last five years after the Supreme Court’s decision should be charged.
“Once constitutional, the union understands that it has always been valid and, therefore, mandatory”, she says. For Alcides, the responsibility for the discount lies with the employer, who would not have done it at the time.
The lawyer’s argument, however, raises controversy. In the action in which it released the charging of the assistance contribution, the STF had first prohibited, on the merits, the fee and, only later, took a turn, with embargoes.
“It cannot (charge retroactively) because there was a topic of general repercussion from the STF itself saying it couldn’t. So, if the STF itself said it couldn’t, how am I going to charge it retroactively?”, says minister Alexandre Agra Belmonte, from the TST .
According to him, for those who believe that the Supreme Court’s new position is “very correct”, the decision may undergo modulation, although, in this case, it can already be considered “intuitive”: “Yes, it can be charged from now on”.
Pedro Aires, Bastos-Tigre’s lawyer, says that there is a lack of legal basis. “The assistance contribution is used to fund collective negotiations, therefore, if they were already made before the STF’s decision, there is no sense in retroactive charging”, he states.
There are those who disagree, however. “It’s the famous case of embargoes that will merit other embargoes”, says Ricardo Calcini, professor at Insper and partner at Calcini Advogados.
“When the Supreme Court does not modulate, it formally authorizes everything that did not exist five years ago to come into existence. There was a lack of modulation,” says Calcini. “Give the union a blank check.”
For him, the STF’s decision still imposes what he calls “forced affiliation” as it violates the principle of free association. “When the Supreme Court forces everyone to pay, it disregards, in my opinion, because this is in the Constitution, that the person has the freedom to join or not.”
In relation to pending modulation points, the experts list the setting of a value limit, so that abusive charges do not occur, determination of what the right to object will be and what the quorum of the assembly will be that will define the percentage of collection of the assistance contribution.
“Would it be fair, for example, for 2% of union leaders to hold an assembly, 3% of workers to attend, and then the 3% who attended to decide for the other 97% that contributions should be discounted for everyone?”, he asks labor lawyer José Eduardo Pastore, from Pastore Advogados. On the other hand, everyone benefits from collective bargaining.
To avoid questions, Neiva, who was from the TST, remembers an agreement between Vale and a railway union, from 2018. At the time, after the labor reform, the Vice-Presidency of the court mediated rules for charging the fee.
“In the Vice-Presidency’s agreement, it had the (value of) half a day’s salary, it had the form of opposition, the opposition period, and the employer safeguard, which was the union’s responsibility in a possible conviction of the employer”, he says Neiva.
Leaders of trade unions condemn possible abuses.
“This is not guidance from any central”, says João Carlos Gonçalves, Juruna, general secretary of Força Sindical, about abusive percentages in collective agreements and retroactive charges, who recalls that the entity repudiates the union tax, abolished in the labor reform of 2017, equivalent to one day of work.
“If you have survived until now without it, why charge? Why pick a fight? We have to think ahead”, he states.
The centers began a campaign to guide unions and workers.
The CUT (Central Única dos Trabalhadores) is distributing a video on social media entitled “Union tax never again”, in an attempt to clarify the difference between tax and contribution. “Talking about taxes is a lie,” says the video.
Força held a forum on communication with managers to discuss how unionism can make workers aware of their rights and the need to be represented by a union.
With the end of the union tax, the money in the entities’ coffers dwindled. The amount reached R$3 billion per year and fell by more than 90%.
For Antonio Carlos Frugis, partner at Soto Frugis Advogados, the STF’s decision indicates the idea of replacing the tax with assistance contributions. “What it appears is that the decision came to provide a way to finance unions”, he says.
PUBLIC PROSECUTION OFFICE OPENS INQUIRY TO INVESTIGATE UNION
The MPT (Public Ministry of Labor) opened a civil inquiry to investigate Seaac, a union that represents the self-employed agents sector in Sorocaba (SP), based on complaints that there were difficulties in workers’ right to object.
“The union will now be officially investigated by the MPT”, says a note from the organization.
According to the prosecutor’s office, a deadline was given for the entity to present its arguments and, if it refuses to comply with the legislation, it could be the target of public civil action.
“The MPT investigation aims to guarantee this right to the collective of workers”, states the body.
The Sorocaba union states that it has had a TAC (conduct adjustment agreement) signed with the MPT since 2022, in which a period of up to ten days was set for opposing the assistance contribution and, even so, it chose to give workers a longer period this year.
The entity charges a 12% contribution, to be paid in four installments. Anyone who objects will be charged a fee of R$150.
“The workers’ complaints are, in fact, because they are unaware of the union’s work and believe that the collective norms and their benefits of salary increases, meal vouchers, among others, are concessions due to the mere liberality of their employers”, states the entity, in a note .
The union sent Folha a note from the federation of independent agents saying that the contribution of 1% per month does not violate the principle of reasonableness, “since we are talking about a collective agreement in which a real increase was obtained.”
LACK OF MODULATION CAN LEAD TO A FLOOR OF LABOR COURT LAWSUITS
- Unions x companies: in case of non-payment of assistance charges by companies, entities representing workers may go to court to demand the payment of the fee from the employer, as threatened by domestic unions
- MPT x unions: the MPT (Public Ministry of Labor), in case of receiving a complaint of alleged abuses, may file public civil actions to question clauses of collective agreements or conventions; In the case of the union of independent agents in Sorocaba (SP), the body has already opened an investigation to investigate possible abusive practices
- Labor complaints: in actions requesting rights allegedly violated by employers, workers who feel aggrieved by the payment of assistance contributions, considered in some way irregular, may request compensation from the employer
- Companies x unions: in cases of workers who charge companies, employers may, for example, if they feel aggrieved, request reimbursement for a charge considered irregular from the union benefiting from the deduction made in the payroll
The post STF decision opens loophole for retroactive union charges and flood of lawsuits appeared first in Jornal de Brasília.
Source link
THE NAIS IS OFFICIAL EDITOR ON NAIS NEWS