Law No. 13,467/2017 (Labor Reform) promoted significant changes in the labor legal system, repealing and amending several articles of the CLT text. One of the most discussed and controversial changes is in the union contribution.
The new wordings of Articles 578 and 582 of the CLT removed the mandatory collection of the union contribution by employers, and their payment to be the employee's college. Furthermore, in order for the company to make the payroll discount, it became necessary the prior and express authorization of the employee.
Even in the face of the change, some unions obtained injunctions in the Labor Court, authorizing the discount of the union contribution, when provided for in clauses approved in General Assemblies – going in the opposite direction the new wording of the article.
A recent decision issued by the Superior Labor Court (TST), however, directed the understanding of the invalidity of these clauses.
The 8th Class of the TST rejected the claim of the Union of Employees in Cleaning and Conservation Companies and Workers in the Urban Cleaning of Araraquara, São Carlos, Matão and Region, based in Araraquara (SP), discount of union contributions of employees of Sodexo Facilities Ltda. Although there was provision in collective norm, for the collegiate, with the amendment introduced by the Labor Reform (Law No. 13,467/2017), for the discount to be carried out it is necessary that the authorization is individual.
The judgment[1], by the rapporteurship of Minister Brito Pereira, points out that, although Article 578 of the CLT does not require that the authorizations are individual, the greater effectiveness of the standard is only obtained when it is interpreted that the prior and express authorization should take place individually. The Rapporteur Minister also showed that
The decision is not surprising, since the TST had already signaled similar understanding in analogous question. Normative Well-known No. 119[2] establishes since 25/08/2014 that confederate or welfare contributions cannot be deaccountanted from non-union employees, as it contradicts the rights of free association and unionization guaranteed in Articles 5, item XX, and 8, item V, both of the Federal Constitution.
The Precedent also provides for the possibility of declared null and void the collective clauses that contradict this understanding, that is, that make the discount of these contributions without prior authorization of the non-union employee, and return of irregularly discounted amounts.
In addition to the TST, the Supreme Federal Court (STF) had already validated understanding, through the issue of Binding Summary No. 40: "The confederate contribution that deals with Art. 8, IV of the constitution, is only required of the affiliates to the respective union."[3] Furthermore, in the Judgment of extraordinary appeal with injury (ARE) 1018459, of 23/02/2017 the Supreme Court affirmed thesis with general repercussion, in the sense that "it is unconstitutional to institution, by agreement, collective agreement or normative judgment, of contributions that are compulsorily imposed on employees of the non-union category."[4]
The issue will still be much debated by jurists and academics, mainly due to the impact it has on the revenue of Professional Trade Unions. Neverthemore, we have been able to draw from a combined reading of recent legislative changes and the jurisprudence of the Higher Courts that the presentation of prior, express and individual authorization is the only valid way to discount trade union contributions.
[1]http://aplicacao5.tst.jus.br/consultaDocumento/acordao.do?anoProcInt=2020&numProcInt=89357&dtaPublicacaoStr=20/04/2021%2007:00:00&nia=7620402
[2] https://www3.tst.jus.br/jurisprudencia/PN_com_indice/PN_completo.html#Tema_PN119
[3] https://jurisprudencia.stf.jus.br/pages/search/seq-sumula792/false
[4] https://jurisprudencia.stf.jus.br/pages/search/repercussao-geral8982/false