The controversy over the changes introduced by Law No. 13,467/2017 (the Labor Reform) for the union contribution has gained several new chapters. According to the new law, the contribution is no longer compulsory and its payment became conditional upon prior and express authorization by workers and employers. With the proximity of the month of March, in which, historically, employees had the amount of the union contribution compulsorily deducted from their wages, new lawsuits have been filed, especially by labor union entities. The dispute on the subject was inflamed by three decisions issues by Trial-Level Labor Courts in Rio de Janeiro/RJ and Lages/SC, cases 0001193-78.2017.5.12.0007,[1] 0001183-34.2017.5.12.0007, and 0100111-08.2018.5.01.0034, and one rendered by the Circuit Court of the Labor Appeals of the 15th Circuit (case 0005385-57.2018.5.15.0000). By way of anticipatory relief, this point of the Labor Reform was declared unconstitutional, thus ordering that the companies proceed to discount the union contribution from the salary of its employees, regardless of their prior and express authorization. Decisions cover only the parties involved in the suits. Two main facts call attention: First, the speed with which the unconstitutionality of this point of the Labor Reform was declared (the decision from Rio de Janeiro was issued only two days after the filing of the suit). This type of review is presumed to require a more detailed study. The Federal Supreme Court (STF) itself, the body responsible for diffuse control of constitutionality, has not yet ruled on the various direct suits of unconstitutionality that it has been receiving on the subject since the enactment of the Labor Reform Law in July of 2017. Second, the objectiveness of the decisions. In summary, formal unconstitutionality was declared on the grounds that the union contribution is of the nature of a tax and, for that reason, under the terms of articles 146 and 149 of the Federal Constitution, could only be amended by a complementary law. No detailed review of the types of taxes was carried out and no consideration was given as to whether the labor union contribution can be treated as a tax from the formal point of view of the legislation. The absence of this deeper examination has left aside some questions that can be understood as strong arguments to support the constitutionality of the Labor Reform by making the union contribution optional. On the substantive side, the decisions did not discuss the very nature of the contribution, which has undergone significant changes over the years via new legislation and even by the freedom of union association enshrined in the Federal Constitution of 1988. In the formal context, the decisions were restricted to a direct and simple interpretation of articles 146 and 149 of the Federal Constitution. Judicial precedents, including those of the STF, were not considered, which already ruled that certain types of taxes may be the object of ordinary law, and not just a complementary law. In this scenario, it is envisaged that anxious judgments by the Labor Courts will be confronted by an imminent ruling of the STF, in the event that the court maintains the position that it adopted on similar issues.
1. Decision suspended by the Circuit Court of Labor Appeals of the 12th Circuit in an injunction granted in the Writ of Mandamus 0000094-60.2018.5.12.0000.
