The business landscape is dynamic and challenging, with companies often focused on operational and growth strategies. However, there is one issue that often goes unnoticed in this hectic context: social security law. We need to reflect on the importance of the corporate pension vision, highlighting its implications and benefits, as well as the need for a proactive approach.
This branch of the law is also present in companies, from tax planning (the tax regime that the company will fall under) to corporate aspects (where the partner is obliged to pay social security contributions).
The approach will therefore cover the following points:
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1. What is Social Security Law?
In a nutshell, it is possible to say that it is a branch of law that deals with the norms and rules related to Social Security - one of the pillars of Social Security. Social Security, in turn, has a bilateral relationship, that is:
- exist rights social security;
- exist duties to be complied with: contributory taxes.
Thus, there are 2 legal relationships:
- 1st Legal Relationship - TaxThe purpose of this tax is to fund the Social Security System, and it is supervised by the Federal Revenue Service. Therefore, according to art. 195 of the Federal Constitution, companies must pay social security contributions on:
a) payroll and other labor income paid or credited, in any capacity, to individuals who provide services to them, even without an employment relationship (service provider);
b) revenue or turnover;
c) profit;
d) For companies that import goods or services from abroad;
- 2nd Legal Relationship - Prestational: It's the partner's turn to benefit from the contributions paid! In this legal relationship, the individuals who paid the contribution can enjoy social security benefits, which are managed by the INSS (National Social Security Institute).
Understanding the legal relationships that involve Social Security can be considered a good investment for any company, because it is wrong to think that the social security lawyer only acts on behalf of employees, on the contrary.
This professional will have to help on several fronts:
- in the analysis of different situations involving the tax burden of the social security sector (including the management of accidents at work);
- optimized management and a reduction in the number of employees on sick leave;
- in reducing the number of injured employees;
- with the shareholders in their contributions, so that there is no unnecessary gap in their future assets;
- the correct payment of Social Security contributions, such as the GFIP (Guarantee Fund and Social Security Information Form);
- in the guidelines for reducing the Work Environment Risk (RAT) and the Accident Prevention Factor (FAP), generating significant savings in corporate finances; (topic discussed below);
- guidelines on: LTCAT (Technical Report on Environmental Working Conditions); PP (Extension of the Expert Opinion); CAT (Work Accident Report); PPRA (Environmental Risk Prevention Program); PCMAT (Construction Industry Working Conditions and Environment Program); PCMSO (Occupational Health Medical Control Program); PGR (Risk Management Program); Histogram (graphical tool for statistical analysis);
- guaranteeing a healthy climate within the company, as employees won't need to gather information about their retirement from the outside world (the company itself will inform them about it) - at this point, it's worth mentioning that some Labor Agreements lay down certain requirements for dealing with employees who are about to retire, including when they are dismissed;
For all these reasons, when integrated into corporate strategy, the social security lawyer not only guarantees legal compliance, but also creates a robust organizational culture aligned with the principles of social responsibility.
2. The social security impact on members
In the business world, the partner's obligation to pay social security contributions stands out as an intricate and often overlooked dimension. This financial commitment not only outlines the partners' tax responsibilities, but also plays a vital role in safeguarding their social security future.
The partner of a company does not have the option of not paying the social security contribution (INSS), because when you have a source of income, the obligation to pay social security arises.
The obligation for entrepreneurs to pay INSS is determined by Law 8.212/91, article 11. According to the article, individual entrepreneurs, individual micro-entrepreneurs (MEI) and micro-enterprises (ME) are obliged to contribute to Social Security on a monthly basis, based on the established rate.
The member's contribution is made through his pro-labour, from which 11% is deducted, regardless of the company's form of taxation and, in some cases, there will also be an employer's contribution, as detailed below:
- Simple ► there is no employer's deduction, only the insured person's;
- Presumed Profit ► 20% on pro-labore
- Real Profit ► 20% on pro-labore
At this point, it should be noted that the withdrawal of pro-labore is mandatory for every partner (if it is a limited company, at least one of the partners must make the withdrawal).
The Brazilian Federal Revenue Service has taken a position on the matter in Answer to Advance Tax Ruling Request 120 - published on 19/8/16, by the General Coordination of Taxation (COSIT), published in the Federal Official Gazette, in which it formalized the understanding that it is forbidden to remunerate partners who provide services to the company exclusively by distributing profits, and that it is mandatory to define a pro-labore and the respective accounting segregation between profits and pro-labores.
Therefore, if a partner provides services and is paid (pro-labore), especially the partner who will be managing the company, the obligation to report the Pro-labore arises, since the social security contributions that are the responsibility of the company and the individual taxpayer will be collected from it.
As a reminder of the seriousness of this issue, article 243 of Decree 3.048/99 states that if it is found that any contribution or other amount due under the legislation has not been paid, the inspectorate will immediately issue a tax assessment notice with a clear and precise breakdown of the triggering events, the contributions due and the periods to which they refer, in accordance with the rules established by the competent bodies.
In other words: the paid partner of the company that does not pay INSS is fined (art. 2 of Law no. 11.457/2007),
Finally, on many occasions the partner is advised to take out as little as possible as a pro-labore (which is subject to the Social Security Contribution), but this amount may not be the best scenario in the long term (retirement/disability benefits).
At this point, the need for a social security lawyer becomes apparent, as they will analyze the entire social security context of this socio-economic partner and inform them of their best future social security scenario.
Thus, as Professor Marcio Hartz when carrying out pension planning, the pension lawyer will: visiting the past (analyzing the professional's working life and verifying the need for possible corrections), photographing the present (understanding the current social security situation) and projecting the future (guaranteeing the best benefit).
But the question always remains, why plan?
Because in this way it is possible to MAXIMIZE the social security benefits, MINIMIZE the tax impacts and OPTIMIZE the growth of this partner's EQUITY. So let's think: if you are obliged to contribute, why not improve that contribution and guarantee the best benefit? Because social security is also a form of INVESTMENT.
3. Social security law in the management of accidents at work
The efficient management of accidents at work is a crucial aspect for companies committed to the safety and well-being of their employees.
In this scenario, Social Security Law has emerged as an essential tool, not only to comply with legal obligations, but also to guarantee the adequate protection of workers and the sustainability of the organization.
Social security law places clear responsibilities on companies in relation to accidents at work. Neglecting to adopt preventive measures or failing to provide safe working conditions can result in legal liability and financial repercussions.
Nowadays, it is common for company departments (HR, Workplace Safety, Tax, etc.) to be unprepared to manage employees' sick leave and effectively control accidents, as the absence of this practice will have repercussions on legal and financial aspects.
Initially, it is important to understand the Degree of Incidence of Incapacity for Work Due to Environmental Risks at Work - GILRAT or RAT (formerly Seguro de Acidente do Trabalho - SAT), which is an additional contribution borne exclusively by the company and is intended to cover events resulting from accidents at work, to which all Brazilian companies must contribute (art. 22, II, of Law 8.212/1991), its value being influenced by the Accident Prevention Factor - FAP - and the Epidemiological Technical Nexus - NTEP.
The FAP consists of a variable multiplying factor based on frequency, severity and cost indices, which can increase or reduce the basic RAT, taking into account the degree of risk in each business environment. At this point, the following explanation is in order:
“The FAP will be set based on the quantification of accident benefits generated in the company, but not only on the number of benefits granted (frequency), but also on the duration of these benefits, since the longer they are, the greater the expense to the system (severity), with different weights being assigned to more serious situations, and also the value of these benefits, since if the injured person had a high benefit salary, the higher the monthly income will be and, therefore, the greater the expense to the social security system (cost).”
(IBRAHIM, Fábio Zambitte. Social Security Law Course. 17th ed. Niterói: Impetus, 2012. p. 265-266.).
Therefore, the matrix for calculating the frequency, severity and cost for calculating the FAP will be made up of the records of every CAT (Work Accident Report) and the records of accident benefits.
In other words, the company also has the OBLIGATION to notify Social Security of an accident at work involving an insured employee, as well as a self-employed worker, by the first working day following the occurrence of the accident and, in the event of death, immediately to the competent authority, under penalty of a fine. This communication is called a CAT - Communication of Accident at Work.
However, in practice, it is very common for companies to fail to report an accident at work, in an attempt to avoid possible civil liability and to exclude the employee's provisional stability when they return to work.
And it was with the aim of mitigating this issue that the Ministry of Social Security created the Social Security Epidemiological Technical Nexus - NTEP, which represents the link between the international classification of diseases (ICD), obtained from the medical examination, and the activity carried out by the employer, recognizing the benefit as accident-related, even without the Communication of Accident at Work.
However, it is worth noting that if the employee is granted accident benefits without the company paying them, the INSS may bring a regressive action against the company in order to obtain compensation for the costs of social benefits arising from the accident at work caused by the “EMPLOYERS” FAULT".
Faced with this scenario, as Prof. Dr Helio Gustavo Alves Phd in the Postgraduate Course in Social Security Law and Procedure, the corporate social security lawyer must work in SYNERGY with the company's other departments, accompanying and GUIDING them from the preliminary analysis of the facts, the opening of the accident report to the request and granting of the relevant social security benefits.
It can also act in the administrative and/or judicial spheres:
1. Administrative: (i) monitoring the medical information contained in the admission, periodic and dismissal exams; (ii) administering medical certificates, controlling social security leave; (iii) monitoring the information contained in the GFIP; (iv) Checking that the company is correctly classified in terms of its preponderant activity; (v) Monitoring accidents and investigating the cause: Typical, Traffic and Illness; (vi) Making, when necessary, good administrative challenges to the epidemiological technical nexus and Legal Request x Request for Facts
2. Judicial: (i) acting as an assistant in social security accident lawsuits filed by employees, with the aim of preventing recognition of the epidemiological technical nexus and possible regressive action by the INSS against the company; (ii) acting together with the labor lawyer in challenging expert opinions;
Therefore, in order to mitigate the risks of accidents and occupational illnesses, it is necessary for the company to have a MULTIPROFESSIONAL TEAM that will act harmoniously, made up of: Safety Engineer, Occupational Physician, Lawyer, HR, each contributing their expertise to ensure a healthy collaborative environment with social responsibility and concern for the well-being of employees.
4. Conclusion
In a business world characterized by COMPLEX AND DYNAMIC challenges, Social Security Law can no longer be considered a secondary issue, because as has been shown, it has significant FINANCIAL and TAX IMPACTS for the company and its partner.
In addition, Social Security Law also plays an essential role in the management of accidents at work, providing a legal framework for the efficient management of accidents at work, which is a vital strategy for the PROSPERITY AND INTEGRITY of organizations in the contemporary business landscape.
