Ariadne Fabiane Velosa Cavalcanti
Lawyer at Marcos Martins Advogados
The 8th Panel of the Superior Labor Court (TST) unanimously dismissed the claim of a union based in Araraquara/SP, regarding the deduction of union dues from employees’ paychecks provided for in collective bargaining rules.
In a class action lawsuit filed in 2019, the union claimed that there was express authorization for the payroll deduction in the collective bargaining rules of the category, requesting that the amounts be withheld and passed on to the employees.
At first instance, the union’s request was accepted, based on the principle of collective private autonomy, as well as on the prestige of the negotiated form over the legislated form, and the decision was upheld by the Regional Labor Court of the 2nd Region.
However, Justice Brito Pereira, rapporteur of the appeal filed by the company, explained that, since the labor reform (Law No. 13,467/2017), the deduction of union dues from employees can only be carried out with individual authorization, even if it is provided for in the collective bargaining agreement.
He also pointed out in his decision that “although art. 578 of the CLT does not require individual authorization, the greater effectiveness of the rule that guarantees the employee’s right to pay union dues is only achieved by interpreting it in the sense that, in order for the deduction to be made, individual authorization is required. Authorization contained in a collective rule, even if approved at a general meeting, is not compatible with this option, as it does not comply with the constitutional principle of freedom of association (art. 5, inc. XX, and 8, inc. V, of the Constitution of the Republic).”
Also according to the rapporteur, the Federal Supreme Court recognized the constitutionality of the provisions of the labor reform that removed the compulsory nature of union dues and made their payment conditional on the prior and express authorization of members.
To this end, it is highly recommended that companies seek legal advice on how to comply with the legislation, which Marcos Martins Advogados is able and prepared to offer.
