Responsible for the administrative, financial and disciplinary control of the Judiciary and the Public Ministry, the CNMP and the CNMP authorized judges and prosecutors to accumulate functions even when they are on leave or away from office – and, therefore, without accumulating extra activities. Payment can reach R$16,200 per month net.
The benefit was approved in April by the National Council of Justice and the National Council of the Public Ministry in a resolution following the judgment of the (Supreme Federal Court) that (extra funds approved to make salaries viable). The regulations guide all instances of the Judiciary and the Public Ministry.
The benefit in question was authorized by the STF in the judgment that dealt with the issue. The amount, a bonus for the cumulative exercise of jurisdiction, assignment or office, is granted when the judge or prosecutor needs to perform a function beyond their normal role. This will be configured, according to the resolution, “through an effective increase in its primary role” in the public service. The additional increases the salary of magistrates and prosecutors to R$62,600.
The bonus is compensatory in nature and, therefore, does not pay social security contributions, unlike the salary of most workers. The bonus is equivalent to 35% of the subsidy, which can reach R$16,200 per month, and is added to the civil service salary cap of R$46,000.
Despite being compensation for the increased amount of work, compensation for extra activities, CNJ and CNMP authorized it to be paid to judges and prosecutors who are on leave or on leave – when someone else will have to replace them due to their absence.
The resolution does not list which licenses will allow the payment to be maintained, but it determines that all legal leaves of absence would give this right. Among those provided for by law are those for medical reasons, marriage (eight days), training (three months for studies for every five years worked), maternity (120 days) and paternity (20 days).
Luciana Zaffalon, executive director of the Justa platform, an organization that researches issues related to Justice, states that there is a tendency to use bonuses in an opportunistic way to escape the rearrangement imposed by the Supreme Court’s decision. “There is no need to talk about replacing other functions if the position is removed”, he comments.
For her, decisions like these tend to discredit the Judiciary to society. “How does the average citizen understand a regulation like this? As a deviation. If Justice institutions do not want to be understood as deviant, they also need to pay attention to this regulation so that it occurs in an honest and transparent manner.”
Maternity leave and, until five months ago, did not entitle you to this bonus. The CNJ authorized the benefit in December, unanimously, in response to a demand from Ajufe (Association of Federal Judges of Brazil). The advantage was maintained even after the STF judgment.
Until then, the Federal Court and most state courts rejected the payment of bonuses to judges who were fathers or mothers during the period of leave, with the argument that the extra remuneration occurred as compensation for the additional work.
Ajufe sued the CNJ arguing that the interruption of the bonus reduced the judges’ salaries by around 15% during the leave. As a result, the association said, maternity could “be used as a subterfuge to constitute a professional interruption, notably to reduce the pregnant woman’s remuneration rights.”
Councilor Caputo Bastos, rapporteur of the request, stated that the suspension of work because of a license “of such magnitude cannot interrupt” a sum “paid regularly”. “The purposes pursued by the Magna Carta transcend the literal interpretation that the GECJ [a gratificação] it can (and should) only be paid when the situation of over-effort arises”, he wrote.
He argued that the debate surrounding leave was not about discrimination against women, but about the “remuneration and social security loss caused by the birth/adoption of a child” and that the salary reduction “goes beyond the limits of legality and reasonableness”. The vote was approved unanimously.
Luciana Zaffalon says that the Judiciary should treat maternity leave and bonuses more clearly, instead of looking for subterfuge. “It is absolutely necessary for the Justice system to have a gender-sensitive budget, but this needs to happen in a way that is anchored in these factual concerns,” he says.
The CNJ responded, through its advice, that maintaining payment during maternity or paternity leave aims to make the laws on bonuses compatible “with the rights to childhood and family life and, also, with the guarantee of no reduction in salaries”.
In the note, the council treats the amount as part of the salary, and not as compensation for the accumulation of duties. “The receipt of the bonus must be guaranteed to all dismissed magistrates, without prejudice to their remuneration, under penalty of the birth or adoption of a child imposing a salary reduction.”
CNJ and CNMP were approached this Friday (8) to comment on the payment of the bonus even for members who are away from their duties and what types of leave will entitle them to the benefit, but they did not respond until the publication of the report.
