Regardless of any alleged defects, the Regional Labor Court of the 23rd Region recognized, in two injunctions, the constitutionality of Provisional Measure 873/2019. The decision is dated April 10.
In two writs of mandamus filed by JBS, represented by attorney Luiz Fernando Plens de Quevedo of Giamundo Neto Advogados, decisions of the labor courts of the municipalities of Confresa and Água Boa are challenged. In urgent relief, the first-instance courts had ordered JBS units to immediately deduct the dues from payroll, under penalty of online attachment of the amounts from JBS’s accounts.
The injunctions state that direct actions of constitutionality have already been filed with the Federal Supreme Court and are being processed under the expedited procedure. In the decisions, Appellate Judge Nicanor Fávero Filho and Acting Judge Adenir Alves da Silva Carruesco note the possible irreversibility of the decision, since, as with union dues themselves, some amounts deducted from employees’ salaries are directed to different entities.
Regarding the municipality of Água Boa, Judge Adenir Alves da Silva Carruesco states that, on a preliminary analysis, no unconstitutionality is observed in Provisional Measure 873/2019, especially since the Federal Supreme Court has not, to date, declared it unconstitutional.
“Moreover, the Provisional Measure merely made explicit an understanding that was already firmly established by Brazilian case law, namely that, except for the tax-type contribution (now abolished), non-unionized employees cannot be charged union contributions or dues, regardless of any authorization by an extraordinary general meeting of the category or a formally provided right to object, or of a provision in a collective agreement”, she states.
In the injunction concerning the municipality of Confresa, Appellate Judge Nicanor Fávero notes that almost 10 actions have already been filed with the STF, none of them considered to have general repercussion.
“This shows the absence of a likelihood of the right, in addition to the abundance of decisions to the contrary in the Labor Courts; moreover, there is nothing in the record of the Collective Action indicating actual harm to the Union if urgent relief were not granted, so there is no risk to the useful outcome of the proceedings”, he explains.
About the Provisional Measure
Provisional Measure 873 prohibits charging union dues to any employee who has not given their union express, individual written authorization. The measure runs counter to the understanding of the Superior Labor Court and guidelines of the Labor Prosecution Service.
Under the text of the Provisional Measure, new articles are added to the CLT, including article 579, which reads: “The requirement to pay union dues is conditional on the prior and voluntary authorization of the employee belonging to a given economic or professional category or liberal profession, in favor of the union representing that category or profession”.
Click here to read the decision on the municipality of Água Boa (in Portuguese).
MS 0000076-96.2019.5.23.0000
Click here to read the decision on the municipality of Confresa (in Portuguese).
MS 0000075-14.2019.5.23.0000
News by Gabriela Coelho, originally published on 04.15.2019 in CONJUR (in Portuguese): https://www.conjur.com.br/2019-abr-15/trt-23-mp-contribuicao-sindical-constitucional
