New FGTS and Social Contributions inspection regulations are edited

The Secretariat of Labour Inspection (SIT) established the procedures for the supervision of the Fund for Guaranteed Time of Service (FGTS) and the social contributions instituted by Complementary Law No. 110/2001, through the publication of the Normative Instruction SIT No. 144/2018 on June-21-2018.

The new legislation indicates that it is incumbent upon the SIT to define the activities and projects in which shall be mandatory, in all fiscal actions, the inclusion of the attributes related to the verification of regularity of the FGTS collections, social contributions and formalization of the employment bond in the work orders, the following points must be respected:

• The minimum period to be scrutinized should start and end, respectively, the first unverified competence and the last required competency, defined at the beginning of the fiscal action.
• If the fiscal action extends for more than three (3) months, the last claimable interest will be that demandable at the time of the closing of the fiscal action. If, during the fiscal action, the labour inspector (Auditor-Fiscal do Trabalho - AFT) finds evidence of non-notified debit, the inspection must be retroactive to other periods, for debit collection purposes.
• In the inspection in the indirect modality, the minimum period to be audited may begin with the oldest competence with an indication of the debit found in computerized systems, limiting the final competence to the existence of documents or information in the databases made available to the inspection.
• In the directed modality, the final competence may be limited to the existence of documents or information in the databases made available for inspection.

Also, the following are considered as salary for purposes of FGTS inspection and social contributions, among others:

a) Base salary, including benefits in natura;

b) Overtime additional;

c) Health hazard allowance, risk premium, allowance for heavy work and night shift additional;

d) Additional for years of service;

e) Daily for travel, for their global value, provided there is no accounting of the amount spent;

f) Daily Allowance, when it pays monthly, for its total amount, if it exceeds the limit of 50% of the monthly remuneration, even if received exclusively as a result of a change of working place of the employee, in the form of art. 470 of CLT;

g) The bonuses incorporated due to the exercise of a position of trust, before November-11-2017;

h) The amount not paid as indemnified notice, in the cases of termination of labor agreement, as art. 484-A from CLT;

i) The amount corresponding to the special bonus for cashiers;

j) The amount of the reservation time, pursuant to § 6 of art. 235-E from CLT, originated before November-11-2017;

k) Premiums granted by the employer with consideration nature, originated before November-11-2017; and

l) Allowances granted by the employer with consideration nature, originated before November-11-2017.

Note: The date of November-11-2017 is used as the beginning of Law No.13.467/2017 (Labor Reform).