Proceeding about FGTS correction awaits judgment in the Supreme Court for two years – 10/10/2021 – Market

The discussion on the monetary correction of the balances of accounts linked to the FGTS has been in the STF (Supreme Federal Court) plenary drawer for two years, since an individual decision paralyzed the processing of thousands of cases in the country until the final word of the court.

After being included and removed from the agenda a few times, there is no forecast when the action will return to the agenda. When he arrived at the court, still in 2014, an abbreviated rite was adopted for the procedure.

The process seeks to update the FGTS accounts for inflation. Today, the balances are adjusted by the TR (Referential Rate) plus interest of 3% per year. TR has been zeroed since 2017.

Labor entities estimate that the fund’s review could have an impact of more than R$300 billion on public coffers.

Leaders of trade union centrals sought the president of the court, minister Luiz Fux, for a hearing, but they are still waiting for an answer. It is Fux’s prerogative to define what goes to trial in the plenary.

Fux told the sheet that there is currently a proposal on the correction of the FGTS under discussion in the National Congress and that, out of deference to parliamentarians, the Supreme Court decided to wait a little before ruling the case.

“If there is no deliberation on the issue in Parliament in the coming months, the STF may reschedule a date for judgment of the action,” he said.

A majority current in the court, and Fux is part of it, takes into account the economic repercussions of court decisions, a concern that has increased in times of pandemic.

During the preparation of the process for judgment (procedural instruction), the federal government and the Senate defended the constitutionality of the rules that established the TR as an index for the FGTS accounts.​

There is an assessment that the imbroglio surrounding the FGTS can wait longer, not least because the chances of the government losing in court are concrete.

Last year, for example, the logic that moved the ministers when declaring unconstitutional the application of the TR (reference rate) in the monetary correction of labor debts was that there is no less advantageous correction index for those who had court orders to receive.

In the case of the FGTS, the Solidarity party sent an ADI (direct action of unconstitutionality) to the Supreme Court to challenge the TR as an indexer of the amounts deposited in the accounts linked to the fund.

The reference rate was created in the early 1990s amid a set of rules aimed at de-indexing the economy.

Solidarity claims that the TR is unconstitutional because it corrodes workers’ assets by not replacing inflationary losses.

“We need a new index. The losses are huge. We could say that this is the biggest robbery in the world, so many people have been robbed for so long,” says the national president of Solidarity, Federal Deputy Paulo Pereira da Silva (SP), Paulinho da Força.

Among the arguments, the party cited a study by Dieese (Inter-Union Department of Statistics and Socio-Economic Studies) which pointed out a gap of 48.3% in FGTS balances between 1999 and 2013.

According to the department, the post-1999 scenario of falling interest rates directly affected the TR variation.

“This had a direct impact on the fund’s profitability and, on the other hand, also affected the remuneration of shareholders,” stated Dieese.

When he received the mission to report the case, Minister Luís Roberto Barroso drew attention to some aspects of the cause.

He stated that the issue interests millions of CLT workers and that, at that time, there was news of more than 50,000 lawsuits.

“The size of the damage alleged by the applicant is also impressive. [partido Solidariedade], which would annually exceed tens of billions of reais, to the disadvantage of workers”, he said.

In September 2019, Barroso granted an injunction (provisional decision) to suspend the processing of all lawsuits pending in Brazil on the matter.

Some judges did not follow Barroso’s determination and continued to analyze actions in other courts of justice.

Appeals for specific cases were presented to the STF and ministers such as Marco Aurélio Mello and Ricardo Lewandowski signed decisions so that Barroso’s order could be carried out.

The PGR (Attorney General’s Office) manifested itself against the processing of the action and, if unsuccessful in this regard, for the dismissal of the request.

An interested party in the discussion, the Central Bank argued that changes approved by the National Congress in 2017 and 2019 for the guarantee fund made the debate lose its object.

The BC referred to the legislative innovation that ensured greater profitability for the accounts, through the distribution of FGTS profits.

As for this argument of the monetary authority, the attorney general of the Republic, Augusto Aras, disagreed.

“There is no question of loss of the object,” said Aras. “Bacen itself, by asserting the loss of the object, makes it clear that the accounts linked to the FGTS continue to be corrected by the TR, so that the discipline considered unconstitutional remains in force and its legal effects, applicable.”

The attorney general stated that the distribution of the positive result earned by the fund, although it represents an increase in remuneration, does not rule out the unconstitutionality thesis supported by Solidarity.

The last time the Supreme Court signaled that it would look into the matter was in May, but the trial was again postponed.

In June, Paulinho da Força went to the Supreme accompanied by the president of Força Sindical, Miguel Torres, and by the president of CUT, Sérgio Nobre.

The three met with Barroso. At the time, according to the congressman, the minister calculated that the action would return to the agenda in the second half of this year, which has not materialized so far.

In light of this situation, the parliamentarian stated to the sheet who went back to seeing the magistrate earlier this month by telephone.

“Told him [Barroso] that nobody believes that the country has the money to pay, but we can make a negotiation like what happened back then, during the Fernando Henrique Cardoso government, in the agreement in which 42 million people received the losses of the Plano Collor”, he affirmed.

“We can do it with the current government or the next government, but we need the Supreme to take a stand.”

According to Paulinho, the minister suggested that he meet with the president of the Supreme Court, who has the prerogative of defining the judgment agenda. Fux has not yet responded to the hearing, the deputy said.

The president of Solidarity stated that he was also advised to seek out the minister of Economy, Paulo Guedes.

“If I go to talk to Paulo Guedes without a decision from the Supreme Court, he won’t even listen to me. So, government is second to none. It is better to bring up the matter first in the Supreme Court.”