The revision of the Employment Compensation Fund (FGTS) is one of the most discussed topics by workers in 2021, with the great debate it is common that many doubts arise regarding the functioning of the revision as well as the certain economic and financial points that the proposal comes bringing.
Currently, the review of the Guarantee Fund is currently the largest mass thesis in the country today, because estimates show that if the review is accepted, more than R$ 300 billion can be returned to workers who performed formally registered activities after the year 1999.
The review is being judged by the Federal Supreme Court, where this amount of R$300 billion is the loss that workers had with the adjustment of monetary correction through the Referential Rate (TR) which has already been zeroed for some years.
The FGTS review action
The first point to be discussed concerns the monetary correction of the FGTS, where the balance of active and inactive workers’ accounts undergo monetary correction, where this correction is carried out as expressed by law, according to savings, as far as it is concerned. is corrected through the Reference Interest Rate.
The great pain for this discussion is that since the application of the Referential Rate, more precisely since the year 1999, the correction index has been year after year becoming smaller than the measure of inflation by the indexes existing in the market, which in this case are the IPCA (National Consumer Price Index) and the INPC (National Consumer Price Index).
Therefore, the discussion brings the possibility that this Reference Rate, which is outdated, can be replaced by another index such as the INPC itself, causing the FGTS calculation to have another level of profitability, which would consequently generate a greater profit, where the action of revision of the FGTS asks that if approved, it is applied to all workers who have been harmed by the Referential Rate since then.
The revision of the FGTS gained strong repercussions, as the Federal Supreme Court was supposed to have decided on the matter on May 13, in ADI 5090, precisely aimed at the unconstitutionality of the Referential Rate as a monetary correction index for the Guarantee Fund.
However, the Supreme Court decision scheduled for May 13 was canceled and now awaits a new date for its judgment.
Workers between 1999 and 2021
In view of the wait for the new judgment date, many doubts still arise on the part of workers who may or may not have access to the review, mainly due to the fact that the action is only possible to correct the accounts of the Guarantee Fund between the years 1999 and 2013.
Basically, although many professionals in the field of workers determine the limit until 2013, the fact is that there is no justification for why there is this deadline for monetary correction, this information is one of those that is repeated countless times, but no one knows justify.
It should be clarified that the 2013 limitation does not make sense, as the conditions for the unconstitutionality of the Referential Rate occur since it was applied, or can still be considered since the Referential Rate ended up becoming obsolete in face of a form that could keep up with the devaluation of the Real, which has been taking place since 1999, but which has continued to this day.
The debate concerns an unconstitutional or non-unconstitutional law, therefore, there is no middle ground that defines unconstitutionality only between 1999 and 2013, if you set this date, the Referential Rate becomes unconstitutional in this period, then it becomes constitutional, that is, it makes no sense to determine just this period.
Origin of this date from 1999 to 2013
The defense of the vast majority about the limitation of the years 1999 to 2013 concerns the Declaratory Action of Unconstitutionality (ADI 5090) which concerns the declaration of the unconstitutionality of monetary correction against the values that workers had from the Guarantee Fund through the Rate Reference that was filed in 2014.
Therefore, through your petition, at the beginning, there is a table that shows the difference between the application of the Referential Rate and two correction indices between the years 1999 to 2013, year after year. However, that this table was limited to 2013 is simply because it was comparative only because it was registered in that period, until the end of 2013, but it is necessary to understand that the unconstitutionality is not limited to 2013 and workers can have access to the questioning from 1999 to the present day.