In Brazil, it is estimated that 100 million workers are entitled to the resource.
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There are 78 days to go until the ruling by the Federal Court (STF) of the action that can modify the correction of the TFR. Because the correction is less than inflation, those with money in the Fund end up losing purchasing power.
The court will decide whether those with a balance in the fund, from 1999 until the ruling, are entitled to recovery of losses. To find out what needs to be done to try to recover these values, the ratio of The Tribune spoke to specialists, who made a guide to use and increase the FGTS balance up to R $ 200 thousand.
In Brazil, it is estimated that 100 million workers are entitled to the resource. However, paying them all would cost 700 billion reais. “I think the Supreme Court will want to preserve the government. For the government it would be very bad, it would generate debt, inflation and a series of difficulties”, explained the economist and professor at Fucape, Felipe Storch Damasceno.
Aline Simonelli, labor lawyer and professor at FDV, who has already filed individual lawsuits on the matter, cites that legally there is a similar decision stating that the Reference Rate (TR) is not a currency correction index, as it does not reflect on the change in purchasing power.
“From the point of view of the judicial field, I believe that the Supreme Court will judge favorably, but the Court also gives very political decisions and it is possible to modulate the effects for this correction to be applied to those who have already appealed the case, for example”.
The president of the Istituto Cassa di Garanzia dei Lavoratori (IFGT), Mario Avelino, underlines that there is still time to act.
Invite the interested party to download the Caixa FGTS application to access the fund statement. To make the calculation you need to see the balance of the account year by year and the inflation accumulated in this same period.
From there, it is possible to know what the gain would be. Next, you also need to calculate the fees and filing fees of this type of action. “You have to do the math to see if he pays. On the institute’s website (www.fundodegarantia.org.br) there is a free calculator (to do the simulation) ”, she concluded.
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Experts risk guessing up to an 80% chance
The wait for the judgment of the Federal Supreme Court (STF) divides the specialists. If, on the one hand, some believe that there is an 80% chance that the Court will give a decision in favor of the workers, on the other, there are those who see a 50% chance of another outcome.
“We will have a sentence that will have a great economic, social and political impact, which will greatly influence the decisions of ministers,” says Wiler Coelho, Master in Fundamental Rights and Guarantees.
He understands that the judgment must follow the line of the modulation of a decision to modify the calculation method. “Rules and criteria must be established, especially regarding the time, i.e. from when the new form of correction FGTS is to be applied”.
The specialist sees a tough decision, for or against the correction of the FGTS. “It’s possible for both sides: 50% x 50%.”
Lawyer Christovam Ramos is more optimistic. For him there is an 80% chance of having a favorable decision for the workers. Even if it is the rectification from the date of the trial.
In support of the Supreme Court decision
Contractor Talita Moretto assesses the importance of the judgment of the STF, scheduled for April 20th.
| Photo: Kadidja Fernandes/AT
Citing examples of family members who have already gone to court to correct matters involving severance pay, saleswoman Talita Moretto, 31, believes the Federal Supreme Court (STF) ruling is scheduled for April 20.
“The action aimed at correcting, or not, the values of the FGTS has been going on for some time. I hope this time it won’t be delayed.”
Talita says her Professional Card was signed in 2013 and, for now, intends to leave the fund saved for use in the future.
“I’m thinking of using the money to buy a property. If the value is fixed, even better. My mother who is retired has already filed a lawsuit here in the state. I don’t know if you are aware of the STF ruling.
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What will be judged?
An Unconstitutionality Direct Action (ADI 5090) brought by Solidarietà will be tried in the Federal Supreme Court (STF) on April 20, challenging the adjustment of the TFR Fund (FGTS).
The Fund is adjusted by the Reference Rate (TR) plus 3% annual interest. Since the correction has been less than inflation, the worker ends up losing purchasing power. One possibility is that the correction is made by the National Consumer Price Index (INPC).
Who has the right?
Every worker who had or has a balance in an FGTS account, from 1999 until the judgment date, which is scheduled for April 20. In addition to the heirs of employees who have had a balance in this period and have already passed away.
What can be decided?
If the decision of the Federal Supreme Court (STF) is in favor of the workers, the consequences will still depend on the modulation of the decision.
The STF may decide, for example, that the inflation adjustment should be applied based on the outcome of the ruling.
Another possibility is to modulate the decision so that the inflation adjustment is received only by workers who have filed a court case.
What to do to try to receive the correction for inflation?
Find out the balance in the period
The first step is to check your FGTS balance from 1999 to present. For this, the worker can use the FGTS application, of Caixa Econômica Federal, which provides this information. Therefore, it can generate the account statement on behalf.
do the calculations
With the fund statement, the worker is able to calculate how much he would be entitled to if the correction was made, for example, by the HICP.
To facilitate this, the Institute of the Workers’ Guarantee Fund (IFGT) has created the website www.fundodegarantia.org.br, where a free calculator has been made available so that interested parties can calculate, on the basis of their FGTS declaration.
Since the worker may have more than one account in the fund, the calculation is done per account.
On the main page of the site, just click on the “calculate the amount to receive” button and fill in the data on your account statement to find out how much you would be entitled to.
See if it’s worth it
Knowing how much he would be entitled to, with adjustment based on inflation, the interested party can evaluate whether or not it is convenient to sue.
Can the designer also invoke the correction?
Yes. Even those who have already withdrawn the balance can claim the correction, according to inflation.
Is it better to file an individual or class action?
Collective action is preferred by specialists. Although the individual action has a faster procedure, it is more expensive, in the event of damage, since the employee will have to pay, in addition to the lawyer, the costs of Caixa’s lawyers, unless it is free.
How do I know if I need to take action?
Some unions have formed a public civil action to protect the right of the entire category, in the event that the action judged in the Cassation is favorable to the workers.
In this case, the interested party should contact the trade union of his category to find out if he is protected or not.
How will the worker receive this money?
If the decision is favorable to the workers and correct, the amount goes to the fund account.
The money that goes to active accounts can be withdrawn in the event of unfair dismissal of the worker.
The money that goes to inactive accounts, the worker cannot withdraw immediately, he can withdraw them only when he has the requisites for withdrawing from this type of account. The balance is giving way.
The amount that goes to the account that has already been withdrawn can be withdrawn immediately.
where will the money come from?
The money to pay for this correction can come from the same Guarantee Fund, which has the FGTS equity.
This is a reserve account to pay for expenses like these. It has a reserve of R$115 billion.
How much would it cost?
If the Supreme Court’s decision were to contemplate all workers who are entitled to receive the correction in the country, the value would reach R$ 700 billion.
In this case, experts point out that it would be bad for the government, as it would create debt, inflation and a variety of hardships. They understand that this should not be the path followed by the Court, precisely to preserve the government.
Already in a modulated decision to correct the values according to inflation only for those who have filed a lawsuit in court, with R$ 20 billion it is possible to pay all those entitled.
When did TR fix start?
The Referential Rate (TR) was created in the 1990s, with the Collor government. The goal was to serve as a benchmark for the economy and try to correct inflation, which was out of control.
However, over time, with TR zero, the fund’s return has started to fall below inflation. The context in which it was implemented has ceased to exist and has ceased to make sense.
Judgment
The process was scheduled and suspended a few times. There is an expectation that April 20 of this year will actually take place.
Source: IFGT.
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