Impacts of the readjustment of the maximum value of INSS benefits in the labor field.

On January 12, 2024, Interministerial Ordinance MPS/MF No. 02/2024 was published, which, among other provisions, readjusted the benefits paid by the National Social Security Institute – INSS.

According to the Ordinance, the benefits paid by the INSS will be adjusted, from January 1, 2024, by 3.71%. As a result, the ceiling for benefits under the General Social Security Regime (RGPS) is now R$7,786.02.

This adjustment results in impacts that go beyond social security obligations and are equally relevant to the employer.

In the context of Labor Law, the maximum value of the RGPS benefits extends to the operation of other aspects, whether material or procedural, having repercussions on some institutes of the labor justice system.

Since the entry into force of Law 13,467/2017, known as the “labor reform”, earning a salary equal to or less than 40% of the maximum limit of RGPS benefits has become the criterion for granting the benefit of free justice. Before the reform, the benefit was conditional on receiving a salary equal to or less than twice the legal minimum, which was in line with the provisions of art. 7th, IV, of the CF, which expressly prohibits the use of the minimum wage as an indexing factor.

Applying this percentage to the recently updated value, citizens whose income is equal to or less than R$3,114.41 will be entitled to the benefit. In addition to discussions about the legality of establishing a fixed value for the right to free legal assistance, the controversy lies in defining whether the insufficiency of resources to pay procedural expenses is presumed or conditioned on its proof.

In the first situation, a mere declaration of financial insufficiency signed by the applicant or his lawyer would be enough to grant free legal assistance (Summary no. 463, item I, of the TST and art. 99, paragraph 3, CPC). In the second, the granting of the benefit of free justice would require, simultaneously, a salary perception equal to or less than 40% of the maximum limit of RGPS benefits and effective proof of the situation of insufficient resources (requirement introduced by art. 790, paragraph 4 , CLT).

Due to the massive acceptance of the mere declaration of hyposufficiency for the granting of free justice within the scope of the Labor Court, the issue reached the STF (ADC 80), which was urged to declare the constitutionality of the commands included in §§ 3 and 4 of art. 790. Although the rapporteur of ADC 80, Minister Edson Fachin, issued a decision unfavorable to the continuation of the action, the majority of the Court, in judging the interlocutory appeal, decided to process it. The files were submitted to the Rapporteur on 11/28/2023 and the matter should be considered by the STF soon.

Another institute that has as one of the criteria for setting the ceiling on RGPS benefits is bad faith litigation.

The labor reform called “procedural damage” unfair conduct committed by a complainant, defendant or participant in labor proceedings.

Procedural damage results in the imposition of a fine that varies between 1% and 10% of the corrected value of the case; the payment of compensation to the opposing party for the losses suffered and the expenses incurred; in addition to payment of the opposing party’s attorney’s fees. However, when the value of the case is negligible or inestimable, the fine may be set at up to twice the maximum limit of benefits under the General Social Security Regime.

Considering that this alternative pricing of the fine would today be equivalent to R$ 15,572.04, the question arises about the compatibility between this institute and the previous one, of free justice.

In November 2022[1], the 5th Panel of the TST judged an appeal in which a possible conflict was discussed, in cases filed after the labor reform came into force, between the penalty for procedural bad faith and free justice. On that occasion, the TST reiterated its precedents prior to the reform, in the sense that there is no legal provision regarding the incompatibility between the recognition of procedural bad faith and the granting of free justice, adding that the institutes each have rules own.

It is worth adding that, in this same decision, the 5th Panel of the TST, contrary to the decisions made by the majority of Labor Court bodies, decided that, as of the validity of Law No. 13,467/2017, to grant the benefit of free justice, it is required not only a mere declaration that the party is unable to bear the costs of the process without prejudice to their livelihood and that of their family, but also effective proof of the situation of insufficient resources.

Another change introduced by the labor reform and which is related to the institutes analyzed so far concerns the setting of a maximum limit for procedural costs.

The art. 789 of the CLT started to establish, in addition to the minimum value of costs (R$ 10.64), also a maximum value, equivalent to four times the maximum limit of benefits under the General Social Security Regime (currently R$ 31,144.08).

It is worth remembering that procedural costs constitute a true extrinsic prerequisite for admissibility of appeal, since, in the process of knowledge, their collection is due within the appeal period, together with the appeal deposit. The beneficiary of free justice will not pay any costs to appeal.

Finally, reinforcing the spirit of the labor reform, which significantly made labor relations more flexible at the collective and individual levels, the sole paragraph of article 444 of the CLT inaugurated the figure of the “hyper-sufficient” employee. According to the provision, an employee who holds a higher education diploma and receives a monthly salary equal to or greater than twice the maximum benefit limit of the General Social Security Regime, which currently corresponds to R$ 15,572, will be classified as “hyper-sufficient”. .04.

The presence of these requirements tends to give more freedom for employee and employer to agree on contractual conditions. This individual agreement would even have precedence over collective norms in the matters provided for in article 611-A of the CLT.

As evidenced in the examples listed, the maximum value of the benefits of the General Social Security Regime takes on contours that surpass matters of a social security nature, being used as a reference and defining criterion for various institutes, so that, from its readjustment, result changes in material and procedural aspects of labor, making it imperative to monitor these updates.

Contributed to this article: Luciana de Azevedo Granato, lawyer in the consultancy area, and Isabella Magano, partner.

[1] TST – RRAg: 00101812620195030086, Rapporteur: Breno Medeiros, Judgment Date: 11/23/2022, 5th Panel, Publication Date: 11/25/2022