Newsletter November 2023 – New scenario for assistance contributions – STF Theme 935

This matter has made headlines in newspapers and magazines and has been the subject of various legal texts. No wonder.

The STF (Federal Supreme Court), in a decision handed down last September in ARE case 1018459, established the constitutionality of the imposition by trade unions of an assistance contribution on all worker categories, regardless of their affiliation to the organization, as long as such contribution is provided for in a collective agreement approved by a general meeting, and the right of opposition of those who disagree with it is assured, thereby revising the wording of Theme 935.

The right to freedom of union association, as well as the right not to be charged or suffer salary deductions stipulated in collective bargaining agreements without express consent, is guaranteed in item XXVI of article 611-B, included by Law no. 13.467/2017 (Labour Reform), which is in full force and effect.

In addition, the matter had been settled in labour caselaw since the Superior Labour Court (TST) established Normative Precedent no. 119, which adopts a diametrically opposite view, considering it offensive to the rights of free association and unionization if a collective agreement or regulatory decision stipulates a contribution to a union entity that is binding on workers who are not members.

Law no. 13.467/2017 (Labour Reform) raised the issue of the prevalence of what is negotiated over what is legislated. This new scenario has also been the subject of discussion before the Federal Supreme Court (STF), which considered the constitutionality of clauses stipulated in collective agreements that do not necessarily observe the right contained in the law, as long as a minimum level of social justice is preserved.

This involves negotiating a regulatory clause that provides for application of the assistance contribution to the entire category, as well as ways and means of opposing it.

The alteration by the STF of the position previously established by Normative Precedent no. 119 of the TST has created legal uncertainty, especially as it does not include, as can be seen from the judgment of Justice Barroso, a proposal for modification of its effects. This means that, by ruling that it is constitutional to demand payment of an assistance contribution for the entire category, the union has opened up the possibility of charging retroactively, thereby creating a potential flood of lawsuits to discuss the charge.

There are reports that the central unions (CUT, CSB, CTB, UGT and Força Sindical) have signed a Self-Regulation Agreement, in which retroactive collection of contributions is not recommended, but there is no legal impediment to this. Firstly, the STF’s decision did not modify the application of the rule, so the assistance contribution has been constitutional since its inception; secondly, the unions have their own separate legal personality and are not subordinate to the central unions.

The fact is that the unions’ source of funding was seriously affected by the enactment of Law no. 13.467/2017, when the union contribution (union tax), which was created to support the activity of the entity, became optional and only deductible from the employee’s salary with their express and prior authorization, which led to the depletion of union funds.

The financial situation of the unions favours the collection of past amounts unpaid. Some unions have already started amicable collection actions against the companies, via extrajudicial notification for payment of the amounts not deducted and not passed on.

For the time being, the path to be taken by the unions regarding the collection of this contribution, the timing and the forms of opposition that each entity will formulate for its category, have not yet been established. However, we cannot rule out the possibility of this contribution being imposed by a TRT (Regional Appellate Labour Court) ruling.

Until the situation is satisfactorily resolved by the Judiciary or, who knows, even by the Legislature, the companies, which are not part of the relationship between workers’ unions and their members, will have to face the dilemma between deducting the assistance contribution without the employee’s consent, thereby violating the salary intangibility set out in articles 462 and 611-B, XXVI, of the CLT (Consolidated Labour Laws), or exempting themselves from this duty, exposing themselves to extra-judicial or judicial demands (the latter via enforcement actions).

We remain at your disposal for any clarification.

Maria Lúcia Menezes Gadotti and Patrícia Salviano Teixeira

Partner and Associate lawyer in Labour Law Area – São Paulo

marialucia.gadotti@stussinevessp.com.br and patricia.salviano@stussinevessp.com.br