With the publication of the full decision of the Federal Supreme Court (STF) regarding the Court's new understanding of compulsory union dues, the theory is clear - or almost: the right to object is guaranteed at the meeting. However, one practical question remains: how should this objection be formalized?
Almost two months ago, at the beginning of September this year, the STF concluded the judgment of the motions for clarification in ARE 1018459 - topic of general repercussion 935. The Court decided by a majority vote that compulsory union dues to trade unions are constitutional, as long as the right to object is preserved, which we commented on in a recent article.
In the meantime, there was suspense: some experts and organizations questioned whether the Court would rule on the form of objection or whether, in addition to the legislation, it would bring in new rules on compulsory union dues.
Published on October 30, 2023,[1], the STF ruling details the factual and legal reasons for the change in the majority position of the justices. Central to this decision was the incorporation of Justice Luís Roberto Barroso's opinion - which addresses the right of objection - into the opinion delivered by the reporting judge Justice Gilmar Mendes, who was responsible for leading the 180º turn on compulsory union dues at the STF.
According to Justice Barroso, the employee must be guaranteed the right to object to the payment of the union dues, which will be dealt with in a meeting "with a guarantee of ample information about the collection and, on that occasion, the worker is allowed to object to that payment".
In addition, Barroso explains the contrast between the opt-out of objections and the express and individual authorization previously affirmed by the Court: "the logic is reversed: as a rule, the charge is allowed and, if the worker objects, it is no longer charged."
In other words: the right to object must take place at the employers' or professionals' meeting, when the terms of the collective bargaining agreement previously announced in the call notice will be debated. Also to be discussed is how stakeholders can contribute to the cost of collective bargaining (which usually covers fees, compensation, and the maintenance of labor unions' administrative activities).
With the publication of the alternative solution designed by Barroso, the right to object will now be debated, and exercised, at the time of the meeting. Among the labor unions, there is already a debate: if the employee expresses his refusal to pay, but is voted down by the majority in the meeting, would he then have exercised his right to object and start contributing, like everyone else, to the costs of the negotiation?
Could the class, at the time of the meeting, vote to receive "in real time" the now well-known letters of objection, signed by those who prefer to exercise their right to oppose the charge? These and other questions hang in the balance without a clear guideline.
Companies still have doubts about how to proceed
If organizations and those they represent are looking for a consensus, companies are looking for answers on how to proceed with payroll deductions and, especially, how to adapt to the STF's decision in this new reality of labor union funding in Brazil.
The path that honors the sovereignty of collective decisions in meetings seems right to us. In it, members of the economic and professional categories can exercise their right to object to a vote, with the will of the majority and the joint autonomy of those present prevailing. It is essential to communicate the meeting's decision to the participating companies so that they can proceed with the discounts.
However, it is essential that the right to vote - and to objection - in a meeting be harmonized with the right of free association, i.e.: in cases where only members are allowed to object in resolutions, the same opportunity must be given to non-members, even if at a later date.
In addition, if the community chooses to ensure the right to object by means of a letter or written notice that identifies the individuals opposed to paying the union dues, it also seems reasonable to us that this collective will should prevail. This expression of the will of the majority can be incorporated into the collective bargaining agreement to regulate the cost of negotiations.
In an attempt to clear the way, the Attorney General's Office filed a motion for clarification of the STF's ruling in order to remedy omissions in the following areas:
- softening of the effects of the decision in order to delimit from when on the collection can be done;
- prohibition of third-party intervention in the right of objection; and
- the reasonable level for setting the union dues.
The analysis of these and other motions for clarification is pending, but there are undoubtedly new perspectives and heated debates ahead on financial support for labor unions in Brazil. Until a consensus is reached, it is important that the debates reflect a joint commitment to defending the interests of the majority of those who will be affected by the decision.
[1] ARE 1018459 RG / PR, decision published on October 30, 2023.
