The Specialized Collective Dispute Division (SDC) of the Superior Labor Court (TST) authorized the Brazilian Post Office to collect from its employees’ monthly pay and co-share payment for their health plan (at the rate of 30%, provided that it does not exceed 5% of salary in the case of coinsurance payment and between 2.5% and 4.4% in the case of monthly pay, depending on the salary). In turn, spouses will pay 60% of the monthly fee. Until then, the Brazilian Post Office covered 90% of the costs of the health plan, as provided for in the collective bargaining agreements in force up to July 31, 2018.

The decision, issued on March 12, is of the utmost importance, as it raises the possibility for companies in general to undertake changes in the payment/use of health plans granted to their employees voluntarily, whether due to crises or insurers' demand, or simply due to increasing costs of the plan previously purchased (without contribution and/or co-participation by the workers).

Without specifically addressing the merits of the rules of the health plan in which postal workers were included pursuant to a collective bargaining agreement (which is not so common among private companies), the purpose of this article is to analyze the TST’s understanding (still pending publication in the Official Gazette) in authorizing changes in the form of payment and use of health plans in the event of evident economic and financial problems on the part of the companies.

Although there was no consensus, among the labor courts the understanding prevailed that any change in the rules governing the payment of health plans granted voluntarily by employers, and which could be interpreted as detrimental to workers to some extent, could not be implemented, as provided under article 468 of the Brazilian Labor Code (CLT).[1]

This position taken by the labor courts ultimately discouraged companies from granting this type of benefit to workers or even granting different types of health plans to newly hired employees, based on the TST's Precedent No. 51,[2] which allows the companies to take this path. In some situations, companies were unable to find health plans that were more competitive and had better coverage and service networks, since they would require co-share payments when the health plan previously granted was fully covered by the company.

With the entry into force of the Labor Reform (Law No. 13,467/17), renegotiation of health plan rules (although not provided for in collective bargaining agreements, but in internal rules) became possible in view of the predominance of the negotiated vs. legislated. Nonetheless, we find it very difficult for unions to agree to this kind of change, as in the case of the Brazilian Post Office.

We understand, however, that it is possible to argue that, although the Unions may not agree with changes in the rules governing the payment and use of health insurance, they may be considered by companies, depending on how they are implemented.

In view of all of the above, and in light of the recent decision issued by TST, the debate on possible changes in the rules governing the payment/use of health insurance plans is gaining new momentum. Nevertheless, caution and a case-by-case analysis are needed to avoid future labor contingencies.

1. Article 468 - In individual employment contracts, it is only permissible to change the respective conditions by mutual consent, and provided that the changes do not directly or indirectly result in prejudice to the employee, under penalty of nullity of the provision that infringes on this guarantee.

2. Precedent No. 51 of the Superior Labor Court. REGULATORY NORM. ADVANTAGES AND OPTION FOR NEW REGULATION. ARTICLE 468 OF THE CONSOLIDATED LABOR LAWS (incorporated into Jurisprudential Guidance No. 163 of the SBDI-1) - Res. 129/2005, Published in the Gazette of the Judiciary (DJ) on April 20, 22 and 25, 2005.

I - Regulatory clauses that revoke or alter previously granted advantages will only affect workers hired after the revocation or amendment of the benefit. (former Precedent No. 51 - RA 41/1973, published in the Gazette of the Judiciary on June 14, 1973)

II - In the event of the coexistence of two company benefit plans, the employee's selection of one of them has the legal effect of renouncing the rules of the other system. (former Jurisprudential Guideline No. 163 of the SBDI-1 - included on March 26, 1999)