Palópoli & Albrecht on Conjur: Debate on union contribution goes beyond complementary law and the nature of the tribute

Por Mayra Palópoli

Recent court decisions bring light to one of the most controversial changes in the labor reform (Law 13467/2017): the end of the obligation to collect union contributions, both for companies and for employees.

Historically, employer union contributions were collected by companies in January, and the employee’s union contribution was deducted directly from the payroll in March.

The proximity of the collections is leading to the filing of a series of lawsuits, proposed by unions, that question the constitutionality of the legislative amendment, in order to guarantee their sources of collection. Three recent rulings handed down by labor courts of Rio de Janeiro/RJ and Lages/SC – cases 0001193-78.2017.5.12.0007, 0001183-34.2017.5.12.0007 and 0100111-08.2018.5.01.0034 – and one rendered by the Regional Court of the Work of the 15th Region – Case 0005385-57.2018.5.15.0000 – recognized as valid the arguments of the unions and determined the compulsory maintenance of the collections.

In these preliminary decisions, the labor reform was declared unconstitutional, and it was determined that the companies would discount the union contribution of their employees’ salaries, regardless of prior and express authorization from them. Decisions have scope only between the parties involved in the actions.

The unconstitutionality was declared on the grounds that the union contribution is tax-related and, for that reason, under the terms of articles 146 and 149 of the Federal Constitution, could only be amended by a complementary law, while Law 13467/2017 (labor reform) is an ordinary law.

The amount collected with the union contribution must be divided between unions, federations, confederations, trade union centrals and the “Special Account for Employment and Wages”, the latter being managed precisely by the Ministry of Labor and Employment, since its values integrate the resources of the Worker Protection Fund (CLT, article 589). That is why the union contribution, according to taxpayers, deserves to be called “parafiscal contribution”, since it is not exclusively used for public coffers.

The CLT also defines the destination of this resource, highlighting the obligation of trade unions to provide services related to legal, medical and dental assistance, as well as economic studies (article 592).

The Federal Supreme Court, the body responsible for the declaration of unconstitutionality of the norm, erga omnes effect, has not yet manifested itself on the various actions it has been receiving on the subject since the publication of the labor reform in July 2017.

In the past, the STF recognized union unity in Brazil and the extension of collective bargaining to the whole category, not only to employees affiliated to the unions, and attested to the constitutionality of the union contribution and its legal nature of tribute (ADPF 146/684, RE 146,733 and RE 180,745).

Attention must also be paid to certain judicial precedents, including the STF, which have already stated that certain types of tax may be the subject of ordinary law, not just a complementary law.

The Superior Labor Court, in turn, has not yet issued an opinion or interpretative guidance on the matter, but constituted a special commission exclusively to analyze the labor reform, including with regard to the union contribution.

The decisions that we have so far, therefore, are only reachable to the parties involved and do not reflect the maturing of the debate, being too early to speak in jurisprudential tendency.

In fact, the debate is rather complex and goes beyond the complementary law and tax nature issues on which the decisions in question are based. Concepts such as freedom labor union, freedom of association, various kinds of tribute and their particularities, the current optional character of the contribution and direct collection by the employee have not yet matured.

As a counterpart to the debate on the impossibility of ordinary law to change the union contribution given its nature of tribute, a flagrant violation of freedom of association is sustained. For the simple fact of integrating a certain category, economic or professional, one can not demand union linkage and payment of contribution.

Freedom labor union and freedom of association are also constitutional rights, leaving the Supreme Court facing the apparent conflict.

The International Labor Organization rejects giving the legislator the institution of contribution to be paid by the workers. Union contributions should come from collective bargaining between employers and employees.

The legislature did not extinguish the union contribution, but only gave it an optional character. The employer may only deduct the contribution when expressly authorized by the employee. This, of course, will only authorize such a discount if the union gives you a good service, advise you effectively.

The same rule applies to employers’ union contributions, that is, the company may choose to pay the contribution if it understands that the union advises and helps in the development of its business activity.

Source: Conjur