By Rafael Mello, Paola Gabriela de Carvalho Tosta, Leticia Cordeiro and Fabiana Aparecida da Silva

On March 1, 2019, the Presidency of the Republic adopted Provisional Measure 873 (“MP 873”), which amended the Consolidation of Labor Laws, more specifically its articles 545, 578, 579, 579-A and 582, to give new treatment to union contributions and other contributions due to unions.

For illustrative purposes, the following is a list of the main provisions:

• All contributions to Unions will only be due if expressly and individually authorized by the employee.
• Rules that set compulsory contributions in favor of the union are null and void.
• When authorized, payments will be made by bank slip sent to the employee's residence.

MP 873, despite some innovations, reiterated the provisions already introduced by law 13,467 of 2017 (also known as “Labor Reform”).

The content of MP 873 has a clear and declared intention to reaffirm what the legislator had already made clear. It is, therefore, a reaction by the Executive Branch to the movement of the Unions and other bodies that positioned themselves against the labor reform, notably on the issue of the aforementioned union contribution. This statement is extracted from the explanatory memorandum 26/2019 (EM 26/2019) signed by Minister Paulo Roberto Nunes Guedes in relation to the recommended provisional measure. Let us look at one of the excerpts from EM 26/2019 that makes this motivation clear:

“18. It turns out that, with Law No. 13,467 of July 13, 2017 in force and the Supreme Federal Court having ruled in favor of the constitutionality of the termination of the mandatory union tax, the will of the legislator has not been respected. Various artifices, such as collective negotiations, collective assemblies, establishment of opposition requirements, linking access to collective negotiation benefits to the payment of union dues of all kinds, have been used to directly violate the intention of the legislator and the rights of Brazilian employees.”

In this context, MP 873 and Law 13,467/2017 determine that it is no longer possible for the employer to make a deduction from wages tacitly, making it increasingly evident that the employee's authorization is essential.

In addition to the characteristic of confirming, reaffirming and clarifying the terms of the labor reform, MP 873 sought to provide a procedure for collecting union dues, which must be carried out, when payment is authorized by the employee, by bank slip or electronic equivalent, which must be sent to the employee's residence or, in the event of impossibility of receiving the payment, to the company's headquarters.

This procedure is the subject of discussion in Direct Actions of Unconstitutionality, such as ADI 6099 of the Confederation of Public Servants of Brazil (in progress, but there is a single decision by the Rapporteur Minister Luiz Fux 04/01/2019 not acknowledging the action); ADI 6101 of the Democratic Labor Party (in progress); ADI 6098 of the Federal Council of the Brazilian Bar Association (in progress).

In short, the Direct Actions of Unconstitutionality bring arguments such as violation of articles 8, I, III and IV; 62, caput; and 60, § 4, IV, of the Federal Constitution, that is, absence of requirements for issuing a provisional measure and offense to the principles of union autonomy and representation.

The fact is that MP 873 remains in full force at this time. Companies and employees must be alert to possible undue charges or procedures that are incompatible with those provided for in the labor reform and MP 873.