The (Supreme Federal Court), suspending the so-called “penduricalhos”, rekindled an old debate on: the limits of the constitutional ceiling and the proliferation of funds that.
This practice has occurred based on different measures, such as normative acts of a certain body, as well as state and municipal laws. The ministers’ movement has also pressured Congress to approve a law regulating the matter.
Understand what the hang-ups are and what is at stake with the STF’s judgment.
What are pendants?
“Penduricalho” is a term used to designate additional payments and benefits paid to public servants that increase their remuneration beyond the base salary. In general, they are classified as compensation funds — amounts that are not subject to the constitutional ceiling because, in theory, they serve to compensate specific expenses incurred in carrying out the function.
According to , the total remuneration of public agents cannot exceed the allowance of STF ministers, with sub-ceilings in states and municipalities.
Classic examples of compensation payments that would be considered legitimate are daily allowances for business trips or allowances for changing functional residence, as long as they are provided for by law and linked to a proven expense.
Second, the problem arises when installments start to be classified as compensation even without corresponding to an actual expense by the server — or when they are paid broadly and permanently, systematically increasing monthly income.
Why did the topic return to the center of the debate?
At the beginning of February, Dino made a decision suspending restrictions in the three Powers, establishing that only compensation funds expressly provided for by law can be outside the ceiling of the respective career. Subsequently, it issued a complementary decision prohibiting allowing or legalizing the payment of penduricalhos.
On another front, the minister suspended, this Monday (23), the extracts established by state laws for members of the Judiciary and the . Now, the STF plenary is judging whether or not to endorse these three orders. Magistrates begin voting this Thursday (26).
What are the ministers’ arguments?
According to Dino, there are a number of funds classified as compensation — and, therefore, outside the ceiling — but which in practice would function as salary supplements. Dino states that some of these portions function as “salary funds disguised as compensation”, contributing to . He mentions that the practice violates constitutional principles such as legality, morality and efficiency.
Gilmar, in turn, stated that “the ceiling became the floor, and a very ordinary floor”. According to the dean, the financial autonomy achieved by the careers of the judiciary and the Public Ministry with the 1988 Constitution “does not mean chaos, it does not mean financial sovereignty”.
Examples cited in the decision
Among the types are:
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Compensatory leave converted into cash;
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Bonuses for procedural collection, which could reward the accumulation of cases;
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Bonuses for accumulation of duties, even within regular working hours;
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Travel allowance and fuel allowance without proof of travel;
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Educational aid with no link to proven expenditure;
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Health aid paid regardless of contracting a plan;
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Premium license converted into compensation;
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Vacation accrual transformed into payment;
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Benefits with anecdotal names, such as “peru aid” and “panettone aid”, paid at the end of the year by the bodies
And Congress?
Dino’s injunction gave 60 days for bodies to review payments without a legal basis and demanded a law clearly establishing which funds could exceed the ceiling. He highlighted that Congress approved a proposed amendment to the Constitution providing for regulation of the topic, but that it has not yet been edited — which, according to him, leaves room for broad interpretations and distortions.
The day before the start of the trial, a meeting was held between the rapporteurs of the actions and the president of the STF, Edson Fachin, with the presidents of the Chamber, , and , . It was discussed. The signal from the Legislative representatives would be that the deadline given by Dino would be short and almost unenforceable.
What do you say?
The Attorney General of the Republic, , defended this Wednesday (25) that Dino and Gilmar’s injunctions should not be endorsed. He acknowledged that the theme of penduricalhos is of great importance, but said that the decisions went beyond what was requested in the actions. According to Gonet, this has the potential to “substantially affect the limits imposed on the court’s power to act in the design of the separation of Powers”.
What do magistrate entities say?
defended, in the STF plenary, the payment of extra amounts to the category, the so-called penduricalhos. They argued that there is a disparity between the different categories of judges, and that there would need to be standardization, in addition they pointed out that, given its complexity and volume of cases.
