Minister of the STF determined that extra benefits can only be paid if they are provided for in federal law and approved by Congress
Minister Gilmar Mendes, of the Federal Supreme Court (STF), determined the suspension of payment of extra funds — “hangings” — a judges, judges e members of the state Public Ministry that are not provided for in federal law. The preliminary decision, signed on Monday (23), has national effect and reaches all courts of Justice and state Public Ministries in Brazil.
The measure was taken in the analysis of a Direct Action of Unconstitutionality (ADI 6,606), which questioned laws in the state of Minas Gerais. However, the minister expanded the effects of the decision to the entire country, aiming to end the disparity in salaries and benefits between the different units of the federation.
In the decision, Gilmar Mendes criticized what he called “remunerative creativity”. The minister pointed out that states have created bonuses, aid and compensation through local laws or internal administrative decisions to increase the earnings of magistrates and prosecutors, often exceeding the constitutional ceiling (the maximum salary allowed in public service).
From now on, it is established that:
Federal Law Requirement: any extra benefit (such as aid and bonuses) can only be paid if it has been approved by the National Congress in federal law. State laws can no longer create these benefits on their own;
Comparison: state judges cannot receive benefits that federal judges and superior court ministers do not receive. There must be symmetry between careers;
Role of the CNJ and CNMP: the National Council of Justice (CNJ) and the National Council of the Public Ministry (CNMP) can only regulate what is already in federal law, and it is prohibited to create new benefits by their own resolution;
Deadlines
The decision imposes deadlines for compliance with the order:
Immediately: the payment of any retroactive amounts recognized administratively is prohibited;
45 dias: deadline to stop payments based on local administrative decisions;
60 dias: deadline to cut benefit payments based on state laws that contradict the Constitution;
The minister warned that failure to comply with the decision will be considered “an act that violates the dignity of justice”. If any court insists on making payments outside the new rules after the deadlines, the amounts must be returned and those responsible may face administrative and criminal proceedings.
The decision will be taken to a referendum in the STF plenary, with a virtual trial scheduled to begin next week.
Suspension of ‘hangings’ in the Three Powers
The STF minister, Flávio Dino, had granted an injunction, on the 5th of this month, to suspend the “hangings” in the Three Powers. The decision was taken based on a complaint filed by the Association of Municipal Attorneys of the Central South Coast of the State of São Paulo (APMLCS).
In the document, Dino spoke about the inappropriate use of so-called “compensation funds”. “The unconstitutionality of several monetary benefits which, covered in the formal aspect of compensation installments or payment for exceptional service, were, in reality, disguised remuneration advantages”, wrote the minister.
The payment of “compensation funds” must be made to employees when there is a need to recover expenses that are incurred as a result of ordinary work. Dino makes it clear that they must be exceptional.
In addition to the unconstitutional use of this amount, it is still greater than the salary cap and “is not computed for income tax purposes”, highlights Dino.
This decision by Dino came after two days in which the National Congress approved readjustments and changes in the careers of Legislative servants. Therefore, these earnings exceed the ceiling of currently R$46,366.19, generating “super-salaries” that are unprecedented in Brazilian law and not even in the richest countries in the world.
What are ‘hangings’
The term “penduricalho” is used to refer to compensation funds, bonuses and aid, added to the basic remuneration of public servants and magistrates. These values, in theory, make it possible to compensate for expenses related to the exercise of the function or to reimburse rights not enjoyed, such as the conversion of vacations into cash.
In practice, however, these benefits increase the value of salaries and allow remuneration to exceed the ceiling provided for in the Constitution, which corresponds to the salary of a STF minister — currently R$46,300.
