The contributions owed to trade unions have always been a highly controversial issue, with legislation and higher court rulings constantly changing on the obligation to pay them.
Until November 2017, unions could collect union dues from all employees who belonged to the respective economic or professional category, or a liberal profession, under the terms of the already amended articles 582, 578 and 579 of the CLT.
Law No. 13,467/2017, also known as the "Labor Reform" law, amended several provisions of the CLT, including the articles mentioned above, which dealt with contributions owed to trade unions. From then on, the collection of contributions was made conditional on the prior and express authorization of the members of the category.
It is important to highlight article 611-B of the CLT, also inserted into the legislation by the 2017 Labor Reform, which expressly states that the suppression or reduction of the worker's right to "freedom of professional or trade union association, including the right not to suffer, without his express and prior consent, any wage charge or discount established in a collective bargaining agreement or collective bargaining agreement" is an unlawful object of a collective bargaining agreement.
In this same context, the Federal Supreme Court (STF) judged Direct Action of Unconstitutionality No. 5,794, reinforcing the understanding that the optional nature of union dues is constitutional, in strict compliance with the freedom of association, unionization and expression guaranteed by the Federal Constitution.
However, contrary to what had been consolidated on the subject in recent years, in September 2023, the Supreme Court ruled on Theme 935, establishing the constitutionality of charging assistance contributions to all employees, including those who are not members, as long as the right to object is respected.
As pointed out by the reporting judge of Theme 935, the abolition of the union tax by the Labor Reform had negative repercussions on the main source of funding for trade union institutions. This scenario resulted in the financial emptying of trade unions, compromising their capacity for representation and collective bargaining on behalf of workers.
In this context, the proposal to institute an assistance contribution, aimed primarily at funding collective bargaining, together with the guarantee of the right of opposition, emerges as a measure to ensure the continuity of the union system and preserve freedom of association. The assistance contribution appears as a viable alternative to compensate for the loss of revenue resulting from the end of the union tax, allowing unions to play their role in defending workers' interests.
The inclusion of the guarantee of the right to object aims to strike a balance between the need to finance trade unions and respect for workers' individual freedom to decide on their contribution. This approach seeks to reconcile the financial demands of trade unions with respect for workers' individual rights, promoting a fairer and more equitable environment for all parties involved.
Following the STF's understanding, the Superior Labor Court (TST) ruled in favor of a company that claimed to have been charged union dues without due consideration for the right to object. The rapporteur of the case based his decision on the fact that the collection of assistance contributions from a company not associated with the union, without guaranteeing the right to object, constitutes a violation of the freedom of association and unionization provided for in the Federal Constitution (RRAg-20233-69.2018.5.04.0351, 8th Panel of the TST, judged on 30/10/2023).
This judgment represented the first case in which the TST applied the understanding of Theme 935, setting an important precedent to ensure that both workers and companies can freely exercise their right to object. This is particularly relevant as some unions have tried to arbitrarily restrict the right to object to contributions arising from collective bargaining.
It is true that the matter is still quite controversial, however, recent decisions handed down by the Higher Courts have shown an understanding being consolidated in the right way in the sense that union charges cannot be carried out indiscriminately, and the constitutionally guaranteed rights of free association for other parties must be respected.