The joint judgment of the motions for clarification filed due to omissions, contradictions, and obscurities in the preliminary injunction granted in Direct Action for Unconstitutionality 7.222 (ADI 7.222) was completed on December 18th.
The ADI was filed by the National Confederation of Health, Hospitals, and Establishments and Services (CNSaúde) against Law 14.434/22, which established the national salary floor for nurses, nursing technicians, nursing assistants, and midwives (national nursing floor).
In an en banc judgment of the Federal Supreme Court (STF), the dissent opened by Justice Dias Toffoli prevailed. There were six votes in favor of the understanding that:
- the implementation of the national nursing floor must be carried out through collective bargaining for employed professionals in general;
- the national nursing floor refers to the overall remuneration of the civil servant or the employed professional; and
- the proportionality of the national nursing floor is in relation to the working day of eight hours a day or 44 hours a week.
Collective bargaining is essential in order to apply the floor
Among the points addressed in the motions for clarification filed in ADI 7.222 was obscurity as to what would consist of "sufficiently substantive and apt collective bargaining" to serve as an indispensable condition for application of the national nursing floor described in the decision granting a preliminary injunction upheld by the STF in July of 2023.
In partially granting amending effect to the motion for clarification filed by CNSaúde, Justice Dias Toffoli presented a vote in which he defined application of the national nursing floor through regionalized collective bargaining and observing the base date. If collective bargaining is unsuccessful, the parties have the prerogative to initiate collective dissent. Justice Dias Toffoli established a new wording for item (iii) of the decision granting a preliminary injunction upheld by the STF:
"(iii) in relation to employed professionals in general (article 15-A of Law No. 7,498/1986), implementation of the salary floor must take place on a regionalized basis through collective bargaining carried out in the different territorial bases and on the respective base dates, with what is negotiated prevailing over what is legislated, in view of the concern regarding possible layoffs and the essential nature of the health service. If collective bargaining is unsuccessful, collective dissent, by mutual agreement, is fitting (article 114, paragraph 2, of the Federal Constitution of 1988), or, independently of this, in the event of a momentary stoppage of services carried out by any of the parties (article 114, paragraph 3, of the Federal Constitution of 1988). The resolution of the conflict by the Labor Courts will be guided by the primacy of maintenance of jobs and the quality of patient care, respecting the economic realization of each region."
The dissenting vote presented by Justice Dias Toffoli - and concurred with by Justices Alexandre de Moraes, Cristiano Zanin, Gilmar Mendes, Luiz Fux, and Nunes Marques - made collective bargaining an essential procedure for application of the national nursing floor, favoring what is negotiated over what is legislated.
As we had already argued when the STF's decision granting a preliminary injunction was published, in July of 2023, the logic behind the preliminary injunction was to make collective bargaining a condition for implementation of the national nursing floor, in order to avoid negative externalities.
In the case of the national nursing floor, as highlighted in the vote of Justice Gilmar Mendes, the negative externalities would be "reduction of jobs through the practice of mass layoffs" and "damage to the continuity of provision of health services."
As Justice Dias Toffoli's dissenting vote prevailed, item (iv) was set as part of the decision granting a preliminary injunction upheld by the STF in July of 2023, to define that the national nursing floor refers to the "minimum amount to be paid according to full working day."
Accordingly, the national nursing floor will correspond to the "overall remuneration" of the civil servant or employed professional, encompassing "all the amounts received" and not just the base salary or wage.
Proportionality of the floor to the working day
Although the reporting judge, Justice Luís Roberto Barroso, presented a vote that reduced the working hours parameter for the payment of the national nursing floor to 40 hours a week, the dissenting vote presented by Justice Dias Toffoli prevailed.
Thus, item (iv) set for addition to the decision granting a preliminary injunction upheld by the STF in July of 2023 mentioned the working hours of eight hours a day or 44 hours a week as a parameter for payment of the floor. Working hours can be reduced proportionally through collective bargaining.
The STF has yet to decide on the merits of ADI 7.222 filed by CNSaúde. The judgment refers only to the motions for clarification filed against the decision granting a preliminary injunction upheld by the STF en banc.
The decision, therefore, only clarifies omissions, contradictions, and obscurities related to the preliminary injunction granted by the STF, resulting from CNSaúde's request to suspend the effects of Law 14,434/22.
The appellate decision has yet to be drafted by Justice Dias Toffoli.