STF declara constitucionalidade do fim da contribuição sindical obrigatória

STF declara constitucionalidade do fim da contribuição sindical obrigatória

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Por 6 votos a 3, o Supremo Tribunal Federal (STF) decidiu, na manhã desta sexta-feira (29), declarar a constitucionalidade do ponto da Reforma Trabalhista que extinguiu a obrigatoriedade da contribuição sindical. O dispositivo foi questionado na Ação Direta de Inconstitucionalidade (ADI) 5794, em outras 18 ADIs ajuizadas contra a nova regra e na Ação Declaratória de constitucionalidade (ADC) 55, que buscava o reconhecimento da validade da mudança na legislação. Como as ações tramitaram de forma conjunta, a decisão de hoje aplica-se a todos os processos.

Prevaleceu o entendimento do ministro Luiz Fux, apresentado ontem (28), quando o julgamento foi iniciado. Entre os argumentos expostos por ele e pelos ministros Alexandre de Moraes, Luís Roberto Barroso, Gilmar Mendes, Marco Aurélio e Cármen Lúcia, está o de não se poder admitir que a contribuição sindical seja imposta a trabalhadores e empregadores quando a Constituição determina que ninguém é obrigado a se filiar ou a se manter filiado a uma entidade sindical. Além disso, eles concordaram que o fim da obrigatoriedade da contribuição sindical não ofende a Constituição.

O ministro Fux foi o primeiro a divergir do relator dos processos, ministros Edson Fachin, que votou pela inconstitucionalidade do fim contribuição sindical obrigatória. Entre os argumentos expostos por Fachin e pelo ministro Dias Toffoli e pela ministra Rosa Weber, o fim da obrigatoriedade do tributo vai impedir os sindicatos de buscar formas de organização mais eficazes para defender os direitos dos trabalhadores perante os interesses patronais.

A ADI 5794, à qual as demais ações foram apensadas, norteou o julgamento. A ação foi ajuizada pela Confederação Nacional dos Trabalhadores em Transporte Aquaviário e Aéreo, na Pesca e nos Portos (CONTTMAF). Nela e nos demais processos, o objeto de contestação foi o artigo 1º da Lei 13.467/2017 (Reforma Trabalhista), que deu nova redação aos artigos 545, 578, 579, 582, 583, 587 e 602 da Consolidação das Leis do Trabalho (CLT) para condicionar o recolhimento da contribuição sindical à expressa autorização dos trabalhadores

Contribuição facultativa

Nesta manhã, o julgamento foi retomado com o voto do ministro Alexandre de Moraes, para quem a liberdade associativa, uma premissa constitucional, é a questão primordial envolvida na discussão sobre o fim da obrigatoriedade da contribuição sindical. Na avaliação do ministro, essa regra constitucional amplia a liberdade do trabalhador de se associar ou não a um sindicato e de contribuir ou não com essa representação.

Segundo o ministro, desde a Constituição de 1988 houve uma diminuição do tradicional “sistema de cabresto”, instituído pelo Estado Novo em 1937, tanto no nível do Estado perante os sindicatos, quanto no dos sindicatos sobre os trabalhadores. Nesse sentido, em sua avaliação, a Reforma Trabalhista busca a evolução de um sistema sindical centralizador, arcaico e paternalista para um modelo mais moderno, baseado na liberdade. “Se o empregador tem a opção de se filiar a um sindicato, ele também tem a opção de se não se filiar, de não recolher essa contribuição”, disse.

“Não há autonomia enquanto um sistema sindical depender de dinheiro estatal para sobreviver”, complementou, acrescentando que o legislador constituinte não constitucionalizou a contribuição sindical, mas apenas recepcionou a legislação que a havia criado e permitiu a existência da contribuição sindical de forma subsidiária, mas não compulsória. “Não criou e também não vetou”, disse.

O ministro Luís Roberto Barroso também acompanhou a divergência iniciada pelo ministro Fux ao defender que o fim da contribuição sindical obrigatória não está em desarmonia com a Constituição Federal. Na avaliação dele, não há que se falar em inconstitucionalidade formal ou material, uma vez que é o Congresso Nacional o protagonista dessa discussão que é eminentemente política, por envolver modelo de gestão sindical que se pretende adotar no Brasil.

“O Congresso Nacional é o cenário para que essas decisões sejam tomadas. O STF deve ser autocontido, de forma a respeitar as escolhas políticas do Legislativo”, disse, aproveitando para fazer um apelo para que o Poder Legislativo conclua a Reforma Trabalhista, acabando com a chamada unicidade sindical.

Para Barroso, o princípio constitucional envolvido no caso é o da liberdade sindical, o direito de o trabalhador filiar-se ou não, ou e de contribuir ou não, a uma entidade. Nesse sentido, ele considera o modelo de contribuição compulsória ruim porque não estimula a competitividade e a representatividade, levando um verdadeiro “business” privado. “O sistema é bom para os sindicalistas, mas não é bom para os trabalhadores.”

Também seguindo a divergência, o ministro Gilmar Mendes não verificou nenhuma inconstitucionalidade nas novas regras sobre a contribuição sindical. A seu ver, o modelo anterior causou uma “brutal distorção” com a criação de 16,8 mil sindicatos no país. “Era um modelo de associativismo subsidiado pela contribuição sindical. A África do Sul tem 191 sindicatos, os Estados Unidos, 160, e a Argentina, 91”, citou.

Para ele, o novo regime não suprime a sustentabilidade do sistema. “Simplesmente irá fazer com que os sindicatos sejam sustentados como todas as demais associações por contribuições voluntárias”, ponderou.

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O ministro Marco Aurélio, por sua vez, ressaltou que não considera a contribuição sindical como tributo propriamente dito. “Não concebo que pessoa jurídica de direito privado seja parte ativa tributária”, sustentou.

Na sua avaliação, a contribuição sindical não se enquadra no artigo 149 da Constituição Federal, que trata das contribuições sociais, de intervenção no domínio econômico e de interesse das categorias profissionais ou econômicas. “Não me consta que essa contribuição vise a atuação do estado. Visa sim a atuação do fortalecimento das entidades sindicais”, assinalou.

O ministro Marco Aurélio frisou ainda que o artigo 8º da Carta Magna repete duas vezes que é livre a associação profissional ou sindical e o inciso X do artigo 7º prevê a proteção do salário na forma da lei, constituindo crime sua retenção dolosa.

A presidente do STF, ministra Cármen Lúcia, finalizou o julgamento avaliando que as novas regras não ofendem a Constituição Federal. “Seria conveniente haver normas de transição. Entretanto, não considero que isso seja suficiente para tornar incompatível com a Constituição Federal as normas promulgadas”, apontou.

Para a presidente do Supremo, a mudança leva a um novo pensar da sociedade de como lidar com todas as categorias econômicas e trabalhistas e com todas as formas de atuação na sociedade, sem depender necessariamente do Estado, que nem sempre pode acudir todas as demandas de forma automática.

Contribuição compulsória

Na sessão de hoje, a primeira a acompanhar o voto do ministro Edson Fachin foi a ministra Rosa Weber. Ela iniciou sua fala destacando não ter “simpatia nenhuma pela contribuição sindical obrigatória”, porém destacou que da Constituição Federal emerge um sistema sindical que tem três pilares. “Não podemos mexer em parte sem que haja uma alteração do todo, sob pena de uma desarmonia que atenta contra os comandos constitucionais”, disse a ministra. “É um tripé. Afasta um, a casa cai”, complementou.

Rosa Weber explicou que a Constituição Federal, sem materializar em sua completude o princípio da liberdade sindical, afasta de forma expressa o pluralismo e impõe a unicidade sindical para a legitimidade da representação da atuação sindical. De acordo com ela, é nessa perspectiva que se insere a contribuição compulsória, receita fundamental para o fortalecimento e manutenção dos sindicatos.

A ministra citou dados que apontam para uma queda de 79,6% na arrecadação da contribuição sindical, a maior fonte de receita do sistema, após a Reforma Trabalhista. “É inegável, portanto, o enorme prejuízo na arrecadação do sistema sindical brasileiro, com profundos reflexos na atuação das entidades sindicais como agentes centrais da representação coletiva trabalhista, responsáveis pela defesa dos interesses e direitos de todos os integrantes das respectivas categorias”.

O ministro Dias Toffoli, por sua vez, deu o terceiro voto acompanhando o relator. “Do ponto de vista constitucional, me convenceram os votos dos ministros Edson Fachin e o veemente voto da ministra Rosa Weber.” Toffoli disse concordar com afirmação feita pelo ministro Barroso no sentido de que o país precisa de mais sociedade, argumentando que, “no Brasil, o Estado veio antes da sociedade”.

Mas ponderou que seria necessário que o Congresso fizesse uma reforma gradativa na área, e não, “da noite para o dia”, subverter todo o sistema sem ter uma regra de transição, sem ter uma preparação para a substituição desse financiamento. “Penso que aí está a grande fragilidade do ponto específico que estamos a discutir. Não é possível essa subtração que houve da contribuição sindical sem ter preparado essa transição, sem ter preparado a assunção de mais sociedade civil com menos Estado”, finalizou.

Os ministros Ricardo Lewandowski e Celso de Mello não participaram do julgamento, pois estavam ausentes justificadamente. O ministro Luiz Fux será o redator do acórdão.

Fonte: STF
Data: 29 de junho de 2018
Acesso: 06 de julho de 2018

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  82. I seriously love your website.. Great colors & theme. Did you create this amazing site yourself? Please reply back as I’m wanting to create my own website and would love to find out where you got this from or what the theme is called. Many thanks!|

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  84. Hello would you mind sharing which blog platform you’re using? I’m planning to start my own blog in the near future but I’m having a hard time selecting between BlogEngine/Wordpress/B2evolution and Drupal. The reason I ask is because your design and style seems different then most blogs and I’m looking for something completely unique. P.S My apologies for being off-topic but I had to ask!

  85. First of all I would like to say wonderful blog! I had a quick question that I’d like to ask if you don’t mind. I was curious to know how you center yourself and clear your head before writing. I have had a difficult time clearing my mind in getting my thoughts out there. I truly do enjoy writing but it just seems like the first 10 to 15 minutes tend to be wasted just trying to figure out how to begin. Any ideas or hints? Cheers!|

  86. It’s a shame you don’t have a donate button! I’d certainly donate to this brilliant blog! I guess for now i’ll settle for book-marking and adding your RSS feed to my Google account. I look forward to fresh updates and will share this site with my Facebook group. Chat soon!|

  87. Hello superb website! Does running a blog like this take a large amount of work? I’ve virtually no expertise in programming however I was hoping to start my own blog soon. Anyways, if you have any recommendations or techniques for new blog owners please share. I understand this is off subject nevertheless I just had to ask. Kudos!|

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  91. You really make it seem so easy with your presentation but I find this topic to be actually something which I think I would never understand. It seems too complex and very broad for me. I’m looking forward for your next post, I’ll try to get the hang of it!|

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  96. Hi there outstanding blog! Does running a blog like this require a large amount of work? I’ve absolutely no expertise in programming but I had been hoping to start my own blog soon. Anyways, should you have any ideas or techniques for new blog owners please share. I know this is off topic nevertheless I simply wanted to ask. Appreciate it!|

  97. Good day! I could have sworn I’ve visited this site before but after browsing through some of the posts I realized it’s new to me. Anyways, I’m certainly pleased I came across it and I’ll be book-marking it and checking back frequently!

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  99. Have you ever thought about adding a little bit more than just your articles? I mean, what you say is fundamental and all. Nevertheless imagine if you added some great graphics or video clips to give your posts more, “pop”! Your content is excellent but with pics and videos, this site could definitely be one of the greatest in its niche. Excellent blog!|

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