Business position on the recent STF decision that ruled that it is constitutional for trade unions to charge assistance contributions
Recently the Supreme Court (STF) unanimously decided that it is possible for unions to collect assistance contributions, including from non-member employees, in ARE 1.18.459 (General Repercussion Theme 935), provided that workers are guaranteed the right to object, establishing the following thesis: "it is constitutional to establish, by collective agreement or convention, assistance contributions to be imposed on all employees in the category, even if they are not union members, provided that they are guaranteed the right to object".
This decision sparked a series of questions from the human resources departments of various companies about the need (or not) to charge their employees, as well as about the possibility of retroactive charging by trade unions.
A few clarifications are in order. To begin with, analyzing the thesis established by the STF, it can be seen that the Supreme Court only recognized the constitutionality of the charge, not indicating the competence of companies to make deductions from their employees' salaries.
It is worth noting that the assistance contribution is not to be confused with the union tax, which ceased to be compulsory following the Labor Reform introduced by Law 13,467/2017. The practice of deducting wages as union tax cannot be automatically reproduced in light of the recent decision handed down by the STF.
In this regard, it should be noted that article 611-B of the CLT states that workers' rights cannot be suppressed or reduced by means of a collective bargaining agreement. Among them is the prohibition on making any salary charge or discount established in a collective bargaining agreement or collective bargaining agreement without the employee's prior express consent, according to item XXVI of the aforementioned law:
Art. 611-B. Only the suppression or reduction of the following rights shall constitute the unlawful object of a collective bargaining agreement or collective labor agreement:
XXVI - workers' freedom of professional or trade union association, including the right not to suffer, without their express prior consent, any wage charge or discount established in a collective bargaining agreement.
Therefore, the "right of opposition" referred to by the STF represents precisely the need for the employee's express and prior consent to any salary deduction resulting from a collective bargaining agreement, which was already established by the CLT itself.
This means that the employee's contribution must be duly regulated by the appropriate collective bargaining agreement, and can only be made after the employee's express consent. Thus, the company should only make deductions from workers' salaries if there is provision for the assistance contribution in the collective agreements or conventions, in addition to the need for the employee's express authorization to make the deduction, under penalty of being obliged to reimburse the amount unduly deducted in a possible labor claim.
Finally, it is important to clarify that the STF's decision has not yet been published in full, so there are still doubts about relevant topics on the subject, such as the modulation of effects, the possibility of retroactive collection, the means of collection and the ways of objecting.
As such, we believe that companies should not make any deductions from employees without their prior express consent, and it is also necessary to pay attention to the requirement that the assistance contribution be provided for in a collective bargaining agreement, and we must await the next developments in the discussion once the decision handed down by the STF is published in full.
The commission of jurists appointed by Minister Luis Felipe Salomão drafted the bill to update and adapt the Civil Code, which is currently awaiting review by the Federal Senate. The main objective of the draft bill is to simplify the measures stipulated by the current law and align the Code with doctrinal and jurisprudential interpretations that have been […]
The decision handed down by the Federal Supreme Court (STF) in the judgment of General Repercussion Topic 725 and the Argument for Non-Compliance with Fundamental Precept (ADPF) 324, marks a crucial point in the definition of labor relations and their legal limits in Brazil. In a scenario where companies are increasingly looking for alternatives to [...]
In the age of technology, the start-up ecosystem has attracted many people in recent decades. This is mainly due to the rapid rise of the digital economy, which has led to many success stories of companies that today represent giant players in the market, regardless of the sector in which they operate. In this context of scalable entrepreneurial initiatives, startups have shown themselves to be a huge attraction [...]
Closing our series of posts on the Classes of Intellectual Property Assets, today we're going to look at the registration of COPYRIGHT. An author is the natural person who creates a literary, artistic or scientific work. Copyright protects such works and can be patrimonial (right to commercial exploitation of the work) or moral (claim of authorship, conservation [...]
On June 26, 2024, a new type of operation was published covering companies with a tax domicile in Rio Grande do Sul. This is yet another measure taken by the Federal Government to deal with the damage caused by the floods in Rio Grande do Sul. The new operation, called "SOS-RS Operation", was instituted by PGFN/MF Ordinance No. [...].
In our series of posts explaining the differences between the classes of intellectual assets, today we'll look at DOMAIN REGISTRATION. The protection of a website's electronic address (domain) is carried out at Registro.BR. In this case, the domain availability search is essential for registration. If a third party tries to register a [...]
This website uses cookies to improve your experience as you browse the website. Cookies that are categorized as necessary are stored in your browser as they are essential for the basic functionality of the website to function. We also use third-party cookies, which help us analyze and understand how you use this website. Cookies will be stored on your browser only with your consent. You also have the option to opt out of cookies. However, disabling some cookies may affect your browsing experience.
Functional cookies help in performing certain functionality such as sharing website content on social media platforms, collecting feedback and other third-party features.
Analytical cookies are used to understand how visitors interact with the website. These cookies help provide information about the metrics of the number of visitors, bounce rate, traffic source, etc.
Advertising cookies are used to provide visitors with relevant advertisements and marketing campaigns. These cookies track visitors to websites and collect information to deliver personalized advertisements.
Necessary cookies are those that are absolutely essential for the proper functioning of the website. These cookies guarantee basic functionality and security features of the website, anonymously.