STF postpones ‘perks’ trial to March 25: understand the questioned benefits
Trial of ‘Perks’ in the STF: Remuneration above the Constitutional Ceiling in Focus
The Supreme Federal Court (STF) is preparing for a trial of great relevance that promises to significantly impact the payroll of the public service, especially in the Judiciary. Scheduled for March 25, the STF Plenary will resume the analysis of injunctions granted by ministers Flávio Dino and Gilmar Mendes, which suspended the application of new rules that prevented the payment of certain allowances, popularly known as ‘perks’, above the remuneration ceiling established by the Constitution.
The central discussion revolves around the constitutionality of various benefits and bonuses that are currently paid to magistrates and other high-ranking public servants without being accounted for in the remuneration limit. The ceiling, currently at R$ 44,008.52 (the remuneration of an STF minister), aims to curb super-salaries and ensure equity in the public service. However, the way certain allowances are classified and paid has allowed many to receive amounts well above this limit.
This article details what is at stake, explaining the history of this issue and presenting five notable examples of ‘perks’ that generate controversy and whose future rules will be defined by this crucial decision.
The Context of the Trial: Remuneration Ceiling and the Injunctions
The Federal Constitution of 1988 established the remuneration ceiling as a fundamental principle of public administration, seeking to guarantee the morality and economy of public spending. However, over the years, various interpretations and scattered legislations have allowed the creation of allowances that are not subject to this ceiling, emptying, to some extent, its effectiveness.
The issue gained new contours with the entry into force of resolutions and administrative decisions that attempted to discipline the theme. More recently, the National Council of Justice (CNJ) and the National Council of the Public Prosecutor’s Office (CNMP) approved regulations that, theoretically, would seek to limit these amounts. However, the minister of the STF, Flávio Dino, when granting an injunction, suspended the application of one of these resolutions of the CNJ, which altered the way allowances and benefits were calculated, and which would include certain payments in the ceiling.
Similarly, minister Gilmar Mendes granted another injunction in a separate action, related to magistrates, addressing the same issue. The expectation is that the trial scheduled for March 25 will unify the Supreme Court’s understanding of the concept. This trial is highly anticipated, as it may put an end to a series of questions and standardize the jurisprudence on what can or cannot exceed the ceiling.
The Main ‘Perks’ Under Discussion
The ‘perks’ are, in essence, additions and benefits that are not considered part of the basic remuneration, which allows them, in practice, to exceed the constitutional ceiling. Below, we present five of the most debated, exemplifying the complexity and controversy surrounding these allowances:
1. Housing Allowance: The Benefit of the Past
The housing allowance, perhaps the best known of the ‘perks’, aimed to subsidize housing expenses of judges and prosecutors in locations where no functional property was available. Although it was extinguished in 2018 for the vast majority of magistrates, after an agreement that granted a salary readjustment, it reappears intermittently in debates and discussions about abusive advantages. Its presence in the current debate is more a reflection of recent memory than an actively paid allowance above the ceiling currently for the majority. Its discussion, however, is a milestone in the history of the attempt to control the ‘perks’.
2. Premium License in Cash: Unused Vacation with Free Ceiling
The premium license, a benefit granted to public servants who accumulate certain periods of service without absences, can be converted into money (cash) upon retirement or leaving the position. It turns out that, like the housing allowance, the premium license converted into cash has long not been counted in the remuneration ceiling. The heart of the matter is whether this allowance, which can represent substantial amounts, should or should not be subject to the constitutional limit. Its exclusion from the ceiling raises the earnings of public servants who opt for this modality upon retirement.
3. Pecuniary Bonus for Unused Vacation: Another Benefit Above the Ceiling
Similar to the premium license, the pecuniary bonus for unused vacation allows public servants — especially those with extremely tight schedules, such as judges and prosecutors — to receive in money the amount corresponding to the days of vacation they could not enjoy. This allowance, like the premium license in cash, has also been paid without the incidence of the remuneration ceiling. Proponents of its inclusion in the ceiling argue that this would avoid the excessive accumulation of vacation and promote compliance with the salary limit.
4. Food Allowance and Health Allowance: Allowances of an Indemnifying Nature?
The food allowance and the health allowance are considered allowances of an indemnifying nature in the various spheres of the public service, including the Judiciary and the Public Prosecutor’s Office. That is, they aim to reimburse the public servant for expenses they would have due to the exercise of their functions. The majority argument is that, because they are indemnifying, these allowances should not make up the remuneration ceiling. However, the discussion in the STF resides in delimiting to what extent this indemnifying nature is maintained and whether the amounts paid are compatible with the objective, preventing them from becoming a disguised form of extra remuneration without the incidence of the ceiling. The maintenance or inclusion in the ceiling of these benefits has a direct impact on the purchasing power and the net remuneration of public servants.
5. Overdue Allowances: A Broad Interpretation of Indemnification
This is one of the most controversial ‘perks’ and which, in many situations, involves the largest amounts. It refers to retroactive payments, resulting from judicial or administrative decisions that recognized the right to an amount that was not paid at the right time. Frequently, these accumulated allowances (overdue) are considered of an indemnifying nature and, therefore, excluded from the ceiling. Critics argue that this interpretation allows public servants to receive exorbitant amounts in a single month, completely distorting the spirit of the remuneration ceiling. The trial of the STF can bring clarity on how to treat these past allowances and whether they should, or should not, have their values limited by the ceiling at the time of payment.
The Impact of the Trial
The decision of the STF on the ‘perks’ will have a comprehensive impact. A possible inclusion of these allowances in the ceiling could generate significant savings for public coffers and reinforce the principle of administrative morality. On the other hand, maintaining the exclusion of these allowances from the ceiling would continue to allow several public servants to receive salaries that considerably exceed the constitutional limit, generating criticism about privileges and inequality within the public service.
In addition to the financial aspect, the trial is also crucial for legal certainty and for society’s perception of the performance of the Judiciary itself. The clear definition of what is or is not subject to the ceiling is fundamental to guarantee the transparency and legitimacy of the remuneration of public agents.
Expectations and Future
The expectation is that the STF will establish more rigorous criteria for defining what constitutes an allowance of an indemnifying nature and, therefore, excluded from the ceiling. It is likely that the Court will seek a balance, recognizing the specific nature of some allowances, but curbing abuses and broad interpretations that distort the constitutional ceiling. The decision may generate intense debates and even new legal actions, but it is a fundamental step to standardize the understanding of remuneration in the Brazilian public service.
Society and legal operators await with attention the outcome of this trial, which will not only define the future of the ‘perks’, but will also reaffirm the State’s commitment to fiscal responsibility and equity in the public service.