The Superior Labor Court (TST) decided that the labor reform (Law 13,467/2017) came into force as soon as it was approved, for all employment contracts in progress at the time. However, the new rules can only be applied to facts that occurred after their entry into force.
In other words, in practice, the terms of contracts prior to the reform are valid until November 10, 2017, the day before the new Law is published. Thus, rights extinguished with the reform are only valid until that date.
The labor reform suppressed hourly payments on tour (commuting time), changes in intra-workday breaks, the right to incorporate a role bonus and a 15-minute rest for women before working overtime.
The TST’s decision was taken on Monday (25), by a majority of the Full Court, with a score of 15 votes to 10. The process was judged as a repetitive appeal (topic 23) and, therefore, the understanding becomes mandatory in the entire Labor Court.
The specific case judged was that of a former employee of JBS in Porto Velho. She claimed that the period of displacement (on tour) in transport provided by the company was considered as time made available in the service of the employer and was, therefore, remunerated.
According to the labor reform, this obligation no longer exists. The TST judgment aimed to decide whether or not the new rule would be applied in this case – since the contract was signed before the reform came into force – or whether it would only be applied to those contracts signed after the promulgation of the new law.
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Decision changes previous understanding of the Third Panel of the TST
Initially, the Third Panel of the TST had decided that the company was obliged to pay the benefit for the entire period of the contract, including the period after the labor reform came into force. However, the company filed an appeal and the case was judged by the Full Court of the TST, due to the relevance and scope of the topic.
The majority of the Full Court ended up reversing the previous decision. The Court established the following thesis: “Law 13,467 has immediate application to ongoing employment contracts, starting to regulate the rights arising from law, the triggering events of which have become effective as of its coming into force”.
In other words, the panel concluded that the rules of the labor reform must be applied immediately to ongoing contracts. However, they are not retroactive, that is, they are only valid for events that occurred after their promulgation.
In the case of the judgment in question, JBS will have to pay the worker the benefits relating to the travel periods from the beginning of the contract until November 10, 2017.
The case’s rapporteur voted for the immediate application of the labor reform
In his decision, Minister Aloysio Corrêa da Veiga, president of the TST and rapporteur of the case, stated that when the terms of a contract arise from a law, if it is repealed, the rules of the new legislation apply immediately to pending or future facts .
“In these cases, the new law does not affect a true adjustment between the parties, but only the imperative legal regime, which is independent of their will and, therefore, is subject to possible subsequent changes”, he observed.
The rapporteur also highlighted that the Constitution guarantees the principle of salary irreducibility, protecting the value of the employee’s salary. The rule, however, does not apply to the way future variable benefits are calculated.
In other words, new regulations that may impact these calculations may be applied to any benefits of current contracts, as long as they are related to specific situations and are not permanent, as is the case with transportation provided by the company.
Another point highlighted by Minister Corrêa da Veiga is the adequacy of this understanding to the CLT, where it is written that “imperative provisions will have immediate application to relationships initiated, but not consummated, before the validity of this Consolidation”.
See how each TST minister voted on the application of labor reform
The rapporteur’s vote was followed by ministers Vieira de Mello Filho (general inspector of the Labor Court), Ives Gandra Martins Filho, Caputo Bastos, Agra Belmonte, Douglas Alencar Rodrigues, Breno Medeiros, Alexandre Ramos, Dezena da Silva, Evandro Valadão, Amaury Rodrigues and Sergio Pinto Martins, as well as ministers Maria Cristina Peduzzi, Dora Maria da Costa and Morgana de Almeida Richa.
Minister Mauricio Godinho Delgado, vice-president of the TST, disagreed with the rapporteur’s vote. In his understanding, employment contracts signed before the reform should remain under the rules in force at the time of the celebration.
This was also the understanding of ministers Augusto César, José Roberto Pimenta, Hugo Scheuermann, Cláudio Brandão and Alberto Balazeiro, as well as that of ministers Kátia Arruda, Delaíde Miranda Arantes, Maria Helena Mallmann and Liana Chaib.
The National Confederation of Industry (CNI), the Brazilian Agriculture and Livestock Confederation (CNA), the National Confederation of the Financial System (Consif) and the Central Única dos Trabalhadores participated in the trial.
