O ministro Dias Toffoli suspendeu, nesta sexta-feira (16), o julgamento no Supremo Tribunal Federal (STF) sobre a decisão que liberou a aplicação do piso nacional salarial da enfermagem.
O magistrado pediu vista (mais tempo para análise), e poderá segurar o caso por até 90 dias.
A interrupção foi feita ainda na madrugada, instantes após o julgamento ter sido retomado. Antes, um pedido de vista de Gilmar Mendes suspendeu a análise no final de maio.
A Corte analisava em plenário virtual uma decisão do ministro Roberto Barroso, relator do caso. Em 15 de maio, o magistrado liberou o pagamento do piso, mas fixou algumas regras de aplicação.
Mesmo com a nova suspensão do julgamento, a decisão de Barroso, liberando a aplicação do piso com as condições estabelecidas, segue em vigor.
Nessa retomada do julgamento, o relator apresentou um complemento de voto conjunto com Gilmar Mendes, confirmando a decisão que liberou o pagamento do piso, mas estabelecendo novas regras, como dever de abertura de crédito suplementar a partir do dinheiro destinado a emendas parlamentares para custear o piso na rede pública de estados e municípios.
Ao liberar a aplicação do piso da enfermagem, em decisão individual, Barroso determinou que a medida fosse aplicada por estados, municípios e autarquias só nos limites de valores repassados pela União. Para profissionais da iniciativa privada, o ministro previu a possibilidade de negociação coletiva.
Barroso ainda definiu que, o início dos pagamentos a trabalhadores do setor público seria feito a partir de maio e de acordo com portaria do Ministério da Saúde. No setor privado, os valores devem ser pagos pelos dias trabalhados a partir do 1º de julho de 2023.
O ministro ainda revogou parcialmente sua liminar que suspendia o piso, mas manteve suspenso trecho da lei que instituiu o piso da enfermagem que trata do impedimento para negociação coletiva.
Agora, na complementação feita em conjunto com Gilmar Mendes, os ministros propuseram os seguintes complementos:
Em caso de insuficiência no repasse financeiros a estados, municípios e Distrito Federal, a União deve providenciar crédito suplementar, cuja fonte são recursos inicialmente destinados a ações e serviços públicos de saúde por meio de emendas parlamentares individuais ao Orçamento, ou “direcionadas às demais emendas parlamentares (inclusive de Relator-Geral do Orçamento)”;
O pagamento do piso salarial deve ser proporcional nos casos de carga horária inferior a 8 (oito) horas por dia ou 44 (quarenta e quatro) horas semanais;
Para funcionários privados, necessidade de negociação coletiva para implementação do piso, com a possibilidade de adoção de valores diferentes do mínimo estabelecido na lei. Em caso de não haver acordo, será aplicado o valor do piso, num prazo de 60 dias (contados a partir da publicação da ata de julgamento do caso).
Em relação a este último ponto, Barroso e Gilmar citaram a “preocupação com demissões em massa ou prejuízos para os serviços de saúde” em caso de aplicação direta e imediata do piso no setor privado.
“Como fundamentado pelo relator, a ideia é admitir acordos, contratos e convenções coletivas que versem sobre o piso salarial previsto na Lei nº 14.434/2022, a fim de possibilitar a adequação do piso salarial à realidade dos diferentes hospitais e entidades de saúde pelo país”, afirmaram os ministros no voto. “Atenua-se, assim, o risco de externalidades negativas, especialmente demissões em massa e prejuízo aos serviços de saúde”.
Outro ponto do voto conjunto de Barroso e Gilmar é o que manifesta que há uma “inconstitucionalização progressiva” na fixação de pisos salariais nacionais. A posição abre margem para que eventuais novos pisos para outras categorias sejam derrubados pela Corte ou tenham seus efeitos modificados pelos magistrados.
Segundo os ministros, em casos anteriores de fixação de pisos para professores e agentes de saúde, o STF “atuou de maneira deferente ao poder de conformação legislativa” do Congresso Nacional, “tendo em vista, inclusive, o aporte de recursos pela União Federal”.
“Porém, é importante deixar consignado que a generalização de pisos salariais nacionais coloca em risco grave o princípio federativo, que assegura a autonomia política, administrativa e financeira dos entes subnacionais”, afirmaram.
Divergência
Na primeira tentativa de julgar a decisão individual de Barroso, no meio de maio, o ministro Edson Fachin havia divergido do relator.
Fachin votou para que o piso nacional salarial da enfermagem seja aplicado de forma imediata e integral aos trabalhadores da categoria, sem distinção entre servidores públicos e funcionários da iniciativa privada.
O voto é para que “todos os contratos da categoria de enfermeiros, técnicos de enfermagem, auxiliares de enfermagem e parteiras, sejam implementados, respeitando-se o piso salarial nacional”, na forma e nos termos das normas aprovadas pelo Congresso sobre o tema.
Ao votar no julgamento, Fachin disse que a discussão envolve negociação sobre piso salarial, “cuja previsão constitucional está expressa” e, sem reserva legal, “tem-se a impossibilidade de que a negociação coletiva sobreponha-se à vontade do legislador constituinte e ordinário, no particular”.
“Ora, o destinatário do direito é o próprio trabalhador e, se o espírito do legislador constituinte foi o de garantir a ampliação da melhoria de suas condições sociais e de conferir maior segurança à negociação coletiva, não se afigura admissível interpretação literal que, ao invés de garantir o cumprimento da Constituição, subscreva a sua própria desconstitucionalização”, afirmou.
Entenda
Decisão de Barroso de 15 de maio liberou a aplicação do piso da enfermagem, após a aprovação de leis com as fontes de custeio e regras para implementação.
O piso estava suspenso desde setembro de 2022, por decisão liminar (provisória) de Barroso, depois confirmada pelo restante do STF.
Em 12 de maio, o presidente da República, Luiz Inácio Lula da Silva (PT), sancionou a lei que libera recursos para o pagamento do piso salarial de enfermeiros, técnicos e auxiliares de enfermagem e parteiras.
O crédito especial autorizado é de R$ 7,3 bilhões, valor que será distribuído através do Fundo Nacional da Saúde para estados e municípios. O montante foi aprovado pelo Congresso Nacional no final do mês passado para destravar a aplicação do piso para as categorias.
Segundo o último levantamento do Conselho Federal de Enfermagem, há mais de 2,8 milhões de profissionais do setor no país, entre 693,4 mil enfermeiros, 450 mil auxiliares de enfermagem; 1,66 milhão de técnicos de enfermagem e cerca de 60 mil parteiras.
Segundo o Ministério da Saúde, a despesa anual com a assistência financeira da União aos estados, ao Distrito Federal e aos municípios é estimada em R$ 10,6 bilhões. No entanto, a contar de maio até o fim deste exercício financeiro, são necessários R$ 7,3 bilhões.
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