STF form majority to maintain the suspension of the nursing floor

With a vote by Minister Gilmar Mendes this Thursday (15), the majority of the Federal Supreme Court (STF) voted to maintain the suspension of the national nursing floor, as decided by Minister Luis Roberto Barroso.

The court analyzes, in a virtual plenary session, whether Barroso’s decision that determined the suspension of the law that established a minimum remuneration for nurses and nursing assistants and technicians “until it is clarified” the financial impact of the measure for states and municipalities and for hospitals.

Following Barroso’s vote were ministers Ricardo Lewandowski, Alexandre de Moraes, Dias Toffoli, Cármen Lúcia and Gilmar.

In contrast, ministers Kassio Nunes Marques, André Mendonça and Edson Fachin voted to overturn the decision. Ministers Luiz Fux and Rosa Weber have not yet voted.

The trial will only end on Friday (16), and ministers can modify their votes or stop voting. In the virtual plenary, each member of the Supreme casts their vote on the platform, for a specified period of time.

The norm approved by Congress fixed the minimum salary of R$ 4,750 for nurses. Nursing technicians should receive 70% of this amount, and nursing assistants and midwives, 50%.

Since deciding to suspend the floor, Barroso has reiterated that his decision aims to create, in a consensual way, a source of funding that makes it possible to comply with the law.

“My position is that the establishment of a floor for nursing and other health professionals is very fair. Therefore, I am committed to making this floor possible”, said Barroso after the STF session on the 8th.

“[Mas] My view and that of many is that, without building a source of funding, it would be very difficult to get this wage floor off paper”, he argued. According to Barroso, there was a real and imminent risk of general non-compliance with the law.

In his vote, Justice Gilmar Mendes argues that, in relation to the private sector, it seems essential that a national floor, such as the one being tested, takes into account the social and economic differences that exist between the regions of Brazil: the same floor, which may be insufficient in a state like São Paulo, may seem impractical with the market reality of less affluent states”.

“Negative externalities, such as the likely increase in layoffs in the sector, well illustrate that the violation of legal certainty suffered by the employing party can also be experienced by nursing professionals.”

Barroso’s decision was criticized by President Jair Bolsonaro (PL), who said the suspension was taken on a “personal whim”.

“I don’t know how they’re going to vote [no plenário virtual] the cassio [Nunes Marques] or André Mendonça, I put [esses ministros] inside, but I think they should be on the side of the workers”, he said in a Saturday afternoon in the newspaper Correio Braziliense, citing the members of the STF who were appointed by the president.

Both André Mendonça and Kassio Nunes Marques differed from Barroso in the judgment of the virtual plenary. Fachin also accompanied the two.

According to Mendonça, despite the peculiarities of the case at trial, the Supreme Court’s precedents go against Barroso’s vote.

According to the minister, in similar cases, the STF recognized the constitutionality of the national salary floor for professionals in the public teaching profession of basic education and that, although the law on the salary floor of community health agents is still pending judgment, “there is no decision news (…) that has determined the suspension of its effectiveness”.

Kassio said that, despite agreeing with part of Barroso’s reasoning, he is also concerned about the impacts of the suspension “in view of the possible essential economic needs of professionals benefiting from the new law”.

“It seems to me very likely that the risk of reverse damage arising from the granting of the injunction could be even greater than its rejection,” said Kassio.

“I can’t help but note that the class of nurses, nursing technicians, nursing assistants and midwives have recently bravely faced the fight against the pandemic caused by the Covid-19 virus.”

The action to suspend the law was presented to the Supreme Court by the CNSaúde (National Health Confederation), which represents hospitals and establishments in the area.

The entity’s lawyer, Alexandre Pacheco Bastos, stated that the dominant reality in the country is not that of state-of-the-art hospitals in capitals such as São Paulo and Rio de Janeiro, but that of indebted establishments in the interior and “of the more than 825 municipalities in which the respective Santa Casa is the only health equipment available to the population”.

“These institutions, as is well known, already have accounts quite affected by the delay in the SUS payment table”, said the lawyer.