The pension contributions are based on the value set in the agreement between the parties, held after the final judgment of sentence, and not on the amount defined in the trial of the action. With this understanding the Fifth Chamber of the Superior Labor Court (TST) accepted feature of the Learning Center British and American Ltda. in process in the execution phase.
The Panel ruled Thursday, however, that should be respected the proportion of plots as salary and indemnity contained in the final judgment, pursuant to Subsection 376 of Jurisprudential Orientation I Specialized in bargaining Individual (SDI-1). This limitation occurs because the parcels defined as indemnity does not cover social security contributions.
This proportion observed, "you can allow the right of the parties to conclude the agreement, without opening doors to undesirable tax avoidance", the rapporteur stressed the appeal, Minister Guilherme Augusto Bastos Caputo (pictured).
Process
The process refers to the action of a teacher who pleaded Manaus wage differentials because the educational institution, to fire her without cause, made calculations of severance without including the amount you paid out, value is not recorded in a formal . In the ruling, the Centre was ordered to pay ex-employee $ 11,341.13 U.S.. After the judgment has become final, however, an agreement was signed between the parties, at which the value set at $ 10 thousand.
In the implementation phase of the process, the calculation of social security contributions were made considering the value specified in the sentence. For this reason, the employer filed a motion seeking to implement the change in the calculation basis. In judging the case, the 19th Labor Court of Manaus (AM) determined that the contribution was calculated on the value of the agreement respecting the proportion of plots as salary and indemnity contained in the final decision.
Against this decision, the National Institute of Social Security (INSS), represented today by the Federal Government (Attorney General Federal), then brought an interlocutory petition the Regional Labor Court of the 11th Region (AM / RR), claiming that the pension credit arises from express legal provision and that the parties may not have funds to stamp tax and unavailable. It also submitted that the decision would be res judicata and wounding setting precedents for fraud.
The TRT has reason to INSS, determining the further implementation of the values calculated in the fixed sentence. Based its decision on paragraph 6 of Article 832 of the Consolidation of Labor Laws (CLT), noting that this device ensured the Credit Union has made the decision when the parties sign an agreement after the decision. The Learning Center then appealed against that understanding the TST.
TST
In analyzing the issue, the rapporteur of the appeal, Caputo Bastos minister, explained that "the term conciliatory replaces the final judgment, began to constitute new enforceable." In this regard, he stressed that the social security contribution levied on the amounts paid and credited to the employee, as provided by Article 195 of the Constitution. "You can not have as a basis for calculating the amount of pension debt constant condemnation of the final decision, but the value of the agreement."
The rapporteur also emphasized that "the decision to the contrary would determine the incidence of social security contributions on amounts ever paid and received by the constituent parts of the legal relationship principal-employer and employee."
(Lourdes Tavares / MB)