The Ministry of Labor and Employment (MTE) has finally released the salary transparency reports, but, as we anticipated, the numbers presented do not reflect the real scenario of the companies so that the comparison intended by Law 14,611/23 can be made.
This discrepancy led companies to turn to the Judiciary, especially due to the pressure to disclose these inaccurate reports in such a short period of time – considering the date of disclosure of the reports by the MTE and the deadline for their disclosure on the companies' websites and social networks.
In this scenario, on the afternoon of Friday, 03/22, the decision issued in the of Interlocutory Appeal 6002221-05.2024.4.06.0000/MG, filed from the proceedings of the Class Action 6002221-05.2024.4.06.0000, filed by the Federation of Industries of the State of Minas Gerais (FIEMG), was released. This decision granted the preliminary injunction sought by FIEMG to suspend the effects of Decree 11,795/23 and MTE Ordinance 3,714/23, specifically regarding the publication of salary transparency reports and remuneration criteria.
According to Judge Mr. Lincoln Rodrigues de Faria, who ruled on the interlocutory appeal, the decision is effective erga omnes (for all), which would extend its effects to the national scope and beyond the sphere of the companies represented by FIEMG.
- But what about now: should companies disclose the reports made available by the MTE or not?
The answer to that question initially depends on the nature of the decision itself. Preliminary injunction, as the name suggests, has a precarious effect over time. This means that it can be revoked or modified at any time. From this, the obligation to publish the reports would immediately be in force again.
It is important to note that the decision issued in the case of FIEMG does not determine the suspension of the effects of Law 14,611/23, but only of the decree and the ordinance. Therefore, the recommendation to prepare a salary transparency report is still in force because, depending on the interpretation given to the scope of FIEMG's decision, it may be necessary to disclose a report every six months. The scenario is still uncertain and surrounded by legal uncertainty.
As we have recommended from the beginning, it is important that companies maintain their own salary transparency reports, prepared according to the specificities of the occupations and, above all, with an analysis of the requirements of article 461 of the Brazilian Labor Law - CLT. This applies both to the need for biannual publication and as a result of requests for information from the Labor Prosecutor's Office or other inspection entities.
Precisely because of the precariousness of a judicial decision of a provisional nature, any company interested in not disclosing its report on the day immediately following the revocation or modification of FIEMG's decision must be prepared to adopt the appropriate judicial measures to avoid the publication.
Update on 03/26/2024, at 7:57 p.m.:
The preliminary injunction that suspended the obligation to publish salary transparency reports was revoked. At the request of the Federal Government, the President of the Federal Regional Court of the 6th Region, Judge Mrs. Monica Jacqueline Sifuentes, suspended the effects of the preliminary injunction previously granted to FIEMG, resuming the need to publish the reports of the Ministry of Labor and Employment on companies' websites and social media until 03/31/2024
Companies that wish to prevent the disclosure of the report, at this time, must adopt the appropriate legal measures before the courts.
We remind you that not disclosing reports within the deadline stipulated in Decree 11,795/2023 and MTE Ordinance 3,714/2023 may lead to the payment of a fine of 3%, calculated on the payroll of the company, limited to the amount of 100 minimum wages.
