Alexandre de Moraes voted in favor of collection; judgment is in the virtual plenary of the Supreme
the minister of stf Alexandre de Moraes voted in favor of charging assistance contributions from non-unionized workers. With the vote seen by the magistrate, the Court now has a majority in the judgment that could pave the way for the return of the union tax. The score is 6-0 (read more below).
Moraes released the case for trial on June 26, 2023 after requesting a review (more analysis time). The trial resumed in a virtual plenary at the Court until September 11. In this modality, ministers cast their votes on the platform and there is no debate.
In his vote, the minister says that the “assistential contribution” is the means by which a union funds activities that “workers of the respective professional or economic categories, regardless of affiliation”. read the full Moraes’ vote (PDF – 80 kB).
Voted in favor of the charge, in addition to Moraes:
- Gilmar Mendes (who changed his understanding), Roberto Barroso, Cármen Lúcia, Edson Fachin and Dias Toffoli.
The Federal Supreme Court will still have to decide whether or not to consider the vote of retired minister Marco Aurélio de Mello. He had accompanied Gilmar Mendes for the unconstitutionality of the charge – however, Gilmar changed his understanding in April 2023. André Mendonça, who occupied Marco Aurélio’s vacancy, must present his position if the Court disregards the former minister’s vote.
Read more about union tax:
UNDERSTAND
The STF resumes the analysis of Motions for Clarification filed by the Metallurgist Union of Greater Curitiba against a 2018 judgment on the subject. At the time, the Court had decided that it would be unconstitutional to charge, by agreement, collective agreement or normative sentence, a compulsory contribution to non-union employees.
At that time, the Court extended the understanding to another type of fee, the assistance contribution – adopted to remunerate activities that the union practices to benefit the worker. That is, it also defined that this contribution could not be mandatory. It is this contribution that is now being discussed.
However, in 2017, former President Michel Temer sanctioned a labor reform that abolished the union tax. Previously, all employees, whether unionized or not, were required to pay this fee.
The new law approved by Temer says that the contribution must be authorized “previously and expressly” by the worker. In a new scenario, the ministers readjusted their understandings on the subject and considered the constitutionality of the charge.
Signaling a change in the STF’s understanding of the collection of union dues will impose a change in the relationship between non-unionized workers and unions. If the Court’s judgment ends in favor of the collection, those who do not want to contribute will have to object in advance.
Tax lawyers say that the institution of a charge to all workers to finance unions could cause legal uncertainty if it is not modulated.
If the new understanding of the contribution prevails, the standard will be to have a discount on the salary of all workers, unionized or not.
Here’s what is known about what the tax might look like and its consequences:
- value of contributions – the so-called assistance contribution will be defined in union assemblies and tends to be equivalent to 1 day of work per year for each worker;
- who will pay – the workers, obligatorily. The companies will deduct from the salary and pass it on to the unions;
- potential amount to be raised – before the reform, revenue reached R$ 3 billion for unions;
- wealthy trade unionism and more demonstrations and protests – just as the end of the union tax drastically reduced the financial power of the unions, now the welfare contribution (whose name is a euphemism because it will be a compulsory fee) goes in the opposite direction. The centrals will once again have resources to mobilize people, hire sound trucks and hold demonstrations in places such as Avenida Paulista, in São Paulo, and Esplanada dos Ministérios, in Brasília.
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