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.
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