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Supreme Federal Court changes its understanding of union dues approved through collective bargaining agreements
Until recently the Brazilian Supreme Court (Supremo Tribunal Federal) rule through its precedents that compulsory union dues employees not affiliated with the labor union, even if stipulated through collective bargaining agreements were abusive. The deduction of such dues by employers directly on the payroll required the formal and individual authorization of each worker.
However, such understanding is under review by the Supreme Court in the proceedings ARE 1018459, in the context of a motion for modification filed in the mentioned proceedings. Although the review of such motion has not ended – due to the request of review in chambers of the case by Justice Alexandre de Moraes – the Court has already achieved a majority of votes in favor of allowing the imposing of union dues without individual authorization, as per following conclusion :
“It is constitutional the imposing, by collective bargaining agreement, of assistance union dues contributions on all employees of the professional category, even if not unionized, provided that the right of opposition for each employee is assured”.
It is possible that the Supreme Court modulates the effects of such ruling, allowing the imposition of such dues only after decision is taken, to ensure legal certainty and avoid the filing of multiple actions on the subject regarding dues not previously deducted, as defined by the previous understanding of the Supreme Court.
However, if the aforementioned understanding is approved, companies should review their procedures on union contributions amended in its majority by Law 13,467/17 (“Labor Reform”), when extinguishing the mandatory union contribution. In this scenario, it accepts the authorization for discount through assembly, the absence of transfer of assistance contributions, in the form and manner defined in each collective instrument, subject companies to judicial collections and payment of regulatory fines.
Concurrently to such review of previous rulings by the Supreme Court, the Brazilian Labor Prosecutor Office amended its previous recommendation to all labor public prosecutors regarding the filing of class actions against unions that determined such deductions without formal and individual authorization by employees, as indicate din the Conalist/MPT Guideline, n. 20/2022.
(Available in https://mpt.mp.br/pgt/publicacoes/orientacoes/orientacao-no-20-da-conalis/@display-file/arquivoupdf)
We will continue to follow up the developments and repercussions.
