Controversies about the FGTS calculation basis

Abstract

The paper examines the controversies concerning the calculation basis of the Length of Service Guarantee Fund (FGTS). It characterises the FGTS as a universality of rights and a non-personified entity devoted to administering workers' linked accounts and financing urban infrastructure, basic sanitation and low-income housing. It maintains the labour-law nature of the contributions, rejecting their qualification as a tax or as public revenue of the Union. On the basis of Article 15 of Law 8,036/90 and of the concepts of remuneration and wages in Articles 457 and 458 of the CLT, it delimits the scope of the calculation basis and analyses judicially contested items: the constitutional one-third holiday bonus, indemnified notice of dismissal, the first fifteen days of leave of an injured or ill employee, cashier's allowance, maternity pay and transport vouchers paid in cash, drawing on doctrine and on the case law of the higher courts and of the Regional Labour Courts. It concludes that items of a wage nature form part of the calculation basis, since the statutory criterion covers everything lawfully paid by virtue of the employment contract, save for the exceptions in Article 29, §8, of Law 8,212/91.