STF will decide whether the FGTS correction index should be modified retroactively. Photo: Marcelo Camargo / Agência Brasil
The Federal Court (STF) postponed, without anticipating a new date, a judgment that could benefit thousands of workers who have or had a balance in the Service Time Guarantee Fund (FGTS) from 1999 to today. Indeed, the question is whether the monetary restatement of the fund’s balance, currently based on the reference rate (TR) increased by 3% per year, should rather be done by an inflationary index, such as the INPC or the IPCA. According to the ruling, the impact could exceed half a trillion reais.
In recent years, the readjustment of the amounts deposited in the guarantee fund has only been 3% per year, since the TR has been reset by the Central Bank since 2017. The change is challenged in a Direct Action of Inconstitutionality (ADI), demanded by the Solidarity party in April 2014. In the petition, the caption cites a study by the Inter-union Directorate of Statistics and Socio-Economic Studies (Dieese), which shows a loss of 48.3% of FGTS accounts relative to inflation only until 2013.
If all FGTS quota holders were entitled to an inflation adjustment, a total of R $ 554 billion would have to be deposited into the accounts of 60 million people who have or have had a balance in the fund since January 1999. , according to calculations by the Workers’ Institute Guarantee Fund (IFGT).
At the end of June, a petition with more than 10,000 signatures was submitted to the Supreme Court asking President Luiz Fux to schedule the judgment of the case as soon as possible.
The president of the institute, Mario Avelino, who has been following the case since 2001, explains that the estimate is obtained from a calculation made from data from FGTS reports published monthly by Caixa. From the total value of the active and inactive accounts, the IFGT applies, for the period of the last 22 years, the INPC as a correcting index replacing the TR. “The FGTS is a savings account and, as such, earns compound interest,” he explains.
Given the expressiveness of the amount, jurists familiar with the subject believe that, if it decides to revise the index, the Court will apply the so-called modulation of effects, in which the consequences of a decision have limited effectiveness. In this case, there is a tendency that only workers who have lodged an appeal for review up to the date of the ADI judgment are entitled to the correction of values. The process can be carried out individually or by joining collective actions.
“The suspension of the trial is like a bucket of cold water. I have no doubt that the first negative effect will be to discourage workers from chasing losses, as the culture that fighting with the government is a waste of time is reinforced, ”Avelino said. On the other hand, the postponement gives more time to those who want to file a complaint requesting the revision of the FGTS values.
The IFGT provides a calculator which makes it possible to estimate the amount to which the worker will be entitled in the event of a favorable decision by the STF.
Hundreds of thousands of stocks question the correction index
The legal imbroglio over the revision of the FGTS balance correction index has dragged on for years. Over time, hundreds of thousands of lawsuits involving calculation have accumulated in courts and tribunals across the country, always with unfavorable results for the worker.
In February 2014, one of the cases reached the Superior Court of Justice (TSJ). The rapporteur of the case to the Court, Minister Benedito Gonçalves, ordered the suspension of all similar actions while the one, which would set a precedent, has not been tried. “At the time, it was estimated that around 500,000 cases were suspended pending judgment,” Avelino explains. The result, published only in April 2018, was again contrary to the evolution of the readjustment rate.
In April 2018, around 300,000 cases were tried across the country by applying the STJ agreement, until in September 2019, STF Minister Luís Roberto Barroso again suspended the actions, which were of about 200,000, while the ADI 5,090 demanded by Solidarity in 2014 has not been tried.
ADI’s judgment was initially scheduled for December 2019 and then postponed to May 2020, when it was finally withdrawn from the agenda. On December 17, 2020, the STF scheduled the decision for the last Thursday (13), a deadline that ended up being suspended again.