In a trial that ended on 09/11/2023, the Supreme Court declared constitutional the institution, by agreement or collective convention, of union contributions from employees in a category, even if not unionized. The union contribution is constitutional as long as employees have the right to opposition.
The new understanding changes the previous decision of the Supreme Court in the Extraordinary Appeal (ARE) no. 1018459. At the time of the earlier decision, in February 2017, the Plenary of the Supreme Court had judged unconstitutional the charging of union contributions to non-unionized workers.
Nevertheless, the changes promoted by the Labor Reform (Law 13,467/2017) - sanctioned in July 2017 - on funding union activities caused a shift in the Court's understanding.
At the time, the Supreme Court considered to be unconstitutional the imposition of so-called union assistance to non-unionized employees because of the provision, then existing, of mandatory union contributions ("union tax") of a tax nature, payable by the entire category, regardless of affiliation.
As non-unionized workers already paid for the union system through the "union tax", the assistance contribution established by collective agreement or convention was considered unconstitutional. However, the Labor Reform abolished the union tax.
Therefore, the Supreme Court Justices understood that imposing union assistance payment (intended primarily to fund collective negotiations, together with the guarantee of the right to oppose) ensures the existence of the union system and the freedom of association.
With the new understanding of the Supreme Court, union assistance can only be charged to non-unionized employees (i) if agreed in an agreement or collective convention and (ii) if the aforementioned non-union employees fail to exercise their right to object. Union contribution must fund activities such as collective negotiations. The amount is also not fixed and must be established through negotiation.
In the judgment, the Supreme Court established the thesis of general repercussion in Theme 935: "The institution, by collective agreement or convention, of assistance contributions to be imposed on all employees in the category, even if not unionized, is constitutional, as long as they have the right of opposition." There was no modulation of effects in the judgement.
Source: Brazilian Federal Supreme Court
