The ministers of the STF (Supreme Federal Court) decided that the right to free employment in the Labor Court is limited to workers who earn up to R$5,000. The decision was taken in the judgment of ADC (Declaratory Action of Constitutionality) 80 this Thursday (3).
By eight votes to two, the court overturned the TST (Superior Labor Court) summary of December 2024, which expanded access to the free Judiciary and guaranteed the right to benefits for those who presented a self-declaration of poverty, as the document that proves lack of resources is known.
The winning thesis was that of minister Gilmar Mendes. Luiz Fux, Cristiano Zanin, André Mendonça, Dias Toffoli, Kassio Nunes Marques, Alexandre de Moraes and Flávio Dino voted in favor of it.
Minister Cármen Lúcia voted with the rapporteur of the action, Edson Fachin, who was in favor of the TST summary. For him, there is a right to free justice, without needing proof, for workers who earn up to 40% of the INSS (National Social Security Institute) ceiling, which currently amounts to R$3,390. This value is adjusted year by year.
Those who earn more can present a declaration of poverty and have their right granted, without having to present documents. If you lie, you can be punished, including imprisonment.
In Gilmar's thesis, other professionals will be able to try to access the free service, but will have to prove with documents —not defined by the ministers— that they cannot pay the procedural costs.
For him, it makes sense to adopt the limit of R$5,000 to guarantee free employment in the Labor Court, linked to the exemption from the Income Tax table after the new law of the Lula government. The value will be updated as the IR is updated. If this does not occur, the IPCA (Broad National Consumer Price Index) — official inflation — must be applied.
Mendes said that the self-declaration of hyposufficiency has produced "marking" situations in the Labor Court and cited a state judge who obtained free assistance when declaring poverty, even though he had received R$885,000. "More than Your Excellency", he said to Fachin.
"Self-declaration has produced quite remarkable situations, and unfortunately not exceptional, truly strange", stated Gilmar.
Even before Mendes finished his vote, Fux said he was in favor of the minister's position. "I wanted to meet his ideas. I have more appreciation today for the economic analysis of the Justice system in general," he said.
"As incredible as it may seem, this immoderate use of access to Justice due to this free nature means that 1 in every 3 actions is based on the free parameter, but it exhausts the Judiciary machine, because instead of protecting, it unprotects."
Mendes voted for the unconstitutionality of the TST thesis, defined in 2024, and criticized the court, with which he has maintained disagreements.
"The experience in this court [STF] demonstrates that there are certain bodies in the Justice system that are reluctant to comply with the pronouncements of this court, which justifies the adoption of a cautious stance," said Mendes.
Fachin stated that free access to justice for those who are unable to pay court costs is fundamental to guaranteeing the "right to have rights", and that this Thursday's debate focused only on which criteria should be used to prove financial insufficiency.
"It is worth reflecting on the negative impact of replacing the self-declaration model with objective criteria of presumption and proof on vulnerable groups, even more so if a normative solution is adopted for the entire Judiciary. This is because the establishment of objective criteria may be insufficient to guarantee access to Justice", he stated in his vote, remembering that self-declaration was in force for 40 years.
In the end, the ministers decided to incorporate three suggestions from Flávio Dino into the text that will be published, which are: assistance through the Public Defender's Office is a presumption of hyposufficiency (poverty); Special Courts are outside the free rule, as they are already free for everyone; and the judge can decide which paycheck to take into account to prove income.
Mendes will be the rapporteur of the thesis, which will cover the following decided points:
Unconstitutionality of the 40% limit of Social Security for free in the Labor Court
Free for those who receive up to R$5,000
Updates to IR rules automatically reflect the rule in court; in years in which there is no update to the table, consider IPCA to correct the value
Those who receive more than the stimulated limit must prove their hyposufficiency through documents
Even in the event of relative presumption for earning up to R$5,000, judges may deny the benefit if they find incompatible assets or family income
The judge may require additional documentation to prove the right to free tuition if he wishes
It is unconstitutional to apply the rules to all branches of the Judiciary until it is possible to make adjustments
TST Precedent 463 is unconstitutional
The R$5,000 rule will only be valid after publication
The Legislative Branch has one year to establish equal rules for the entire Judiciary
Understand the case
ADC 80 was taken to the STF by Consif (National Confederation of the Financial System), with the aim of reinforcing the rule that was established in the labor reform. Approved in 2017, the change in the CLT restricted free justice to those earning up to 40% of the Social Security ceiling. Furthermore, it defined that whoever loses the case in the Judiciary must pay the succumbence amounts.
The debate on gratuity had already been taken to the court's virtual plenary, but was interrupted at Fachin's request for prominence, and resumed in the physical plenary. Consif also requested that it be mandatory to prove insufficient resources with documents in all cases.
The confederation presented in the process data indicating that, in 2025, 98.7% of labor actions against banks had a request for gratuity granted in 99.9% of cases, even with an average salary for the category of around R$12.5 thousand.
Minister Fachin had already defended the maintenance of the 40% limit of the Social Security ceiling and proposed that self-declaration of poverty be accepted as valid proof, with the opposing party being responsible for contesting it.
In Gilmar's proposal, workers with income below the ceiling of R$5,000 would not need to provide proof of low income to have their right guaranteed. However, those who earn above should have objective proof.
Minister Cristiano Zanin, despite agreeing with the R$5,000 ceiling, defended the need for proof in all requests for free tuition, even for those earning below the ceiling.
In-person debate
In May, there was a face-to-face debate of arguments for and against, when all parties to the action were able to speak.
Ricardo Quintas Carneiro, lawyer at CUT (Central Única dos Trabalhadores), an organization that participates as amicus curiae —friend of the court—, defended self-declaration as a legitimate means for individuals to have free access to the Judiciary.
The limitation already occurs, according to him, through the challenge of statements made in bad faith. For Carneiro, restricting the declaration of poverty means treating the worker as a potential fraudster. All participants in the action presented their arguments for and against, when the trial had started in the physical plenary this year, in May.
Mauro de Azevedo Menezes, representative of the federation of telecommunications workers, contested the numbers presented by the authors of the action and stated that the Labor Court rejects a relevant portion of the free requests.
He also said that the unemployed and over-indebted need protection. For Menezes, the Constitution already provides for proof of insufficient resources, but this does not eliminate the possibility of "relative presumption based on self-declaration".
