Zanin suspends judgment on changes to FGTS correction

Minister Cristiano Zanin, of the STF (Supreme Federal Court), suspended this Thursday (9.Nov.2023) the trial that deals with the correction of the FGTS (Service Time Guarantee Fund). Zanin requested a review (more time for analysis) and now has up to 90 days to return the case.

The trial had resumed this afternoon, after Minister Nunes Marques reviewed the case again. So far, the judgment has 3 votes in favor for a change in the fund correction.

The President of the Court, Minister Roberto Barroso, is the rapporteur of the case. Voted for the FGTS income, at least, the same as savings. In this afternoon’s session, the magistrate made a modulation in his vote, determining that a Any change in the fund correction will only come into effect from 2025as the decision is not being considered in the 2024 Union Budget.

Barroso also determined that any changes resulting from the Court’s decision be implemented based on the process of preparing the PLDO (Budget Guidelines Bill) for next year, referring to 2025.

Ministers André Mendonça and Nunes Marques followed Barroso’s understanding. In addition to Zanin, votes are still missing from ministers Alexandre de Moraes, Cármen Lúcia, Dias Toffoli, Edson Fachin, Gilmar Mendes and Luiz Fux.

Currently, the FGTS money is corrected by the TR (Reference Rate) + interest of 3% per year. The rate was created in 1991 during Fernando Collor’s government. This is a reference interest rate, functioning as a general indicator of the country’s economy.

The TR is calculated and published daily by the Central Bank. This Thursday (Nov 9), the rate was 0.0775%.

The judgment deals with an action filed by the Solidariedade party in 2014. The action questions the constitutionality of using the Reference Rate to adjust the FGTS.

The party argues that the rate has not kept pace with inflation since 1999, causing harm to the worker with losses in purchasing power.

GOVERNMENT IS THE MAIN INTERESTED

The government of President Luiz Inácio Lula da Silva (PT) celebrated Zanin’s request for a view. The minister was appointed by Lula this year and is a former PT lawyer.

In a note, the Union’s attorney general, Jorge Messias, said that the request has a “positive aspect” for allowing the government more time to present a proposal for an agreement and allowing ministers to “reflect a little” about the trial.

According to a document presented by the AGU (Advocacia Geral da União) to the Court, the estimated impact on the Union Budget is R$8.6 billion in 4 yearsif the understanding of the President of the Court, Minister Roberto Barroso, prevails.

The government tried to delay the Supreme Court on more than one occasion. On October 16, Barroso decided postpone the trial after meeting with 4 state ministers.

The meeting took place with ministers Fernando Haddad (Finance), Jader Filho (Cities), Jorge Messias and Luiz Marinho (Labor and Employment). The then president of Caixa, Rita Serrano, also attended the meeting.

At the time, in a statement published on the STF website, the justification was that the government would present “new calculations” that would be taken to the Court ministers in search of a solution.

On October 31, the Ministry of Labor, AGU, Caixa Econômica Federal and 6 trade unions met and announced that they would file a request with the STF to postpone the trial for 30 days. Days after the announcement, on November 2, the AGU asked for the action filed by Solidariedade to be removed from the agenda – however, Barroso decided to maintain the date for analyzing the case.

Messias even met with Barroso at the Supreme Court headquarters to discuss the trial on the eve of the issue returning to the Court’s agenda to try to gain time in drafting a proposal in an attempt to reach an agreement.

One of the government’s proposals on the topic – which is expensive for the Union – is that the FGTS correction be made using the savings account index from 2025 onwards. Minister Barroso’s understanding this Thursday (Nov 9) encompasses the proposal.