The Fifth Panel of the Superior Labor Court recognized the validity of the collective clause that had excluded the calculation, such as overtime, of the ten minutes that precede and follow the working day. With this, Vulcabrás Azaléia Calçados e Artigos Esportivos SA will not have to pay the period to a cutting coordinator at its unit in Parobé (RS).
disregard
In the labor action, the coordinator said that he had worked for Azaléia from 1986 to 2014. Among other requests, he maintained that the periods of up to ten minutes before and after the workday were not paid by the company as extraordinary, with the justification that collective norm authorized its disregard.
Limit
The request was granted in a sentence and confirmed by the Regional Labor Court of the 4th Region (RS), which considered invalid the collective clauses on which the employer had based itself to determine the employee’s journey throughout the contract.
According to the TRT, paragraph 1 of article 58 of the CLT specifically regulates the matter, establishing that variations that do not exceed five minutes are not discounted or computed, subject to a maximum of ten minutes per day. Thus, the autonomy of collective wills could not rule out minimum guarantees such as the limit on the duration of work.
will of the parties
When resorting to the TST, the company maintained that collective norms reflect the will of the parties involved. He also argued that it is impossible for all employees to register their journey at the same time, hence the ten-minute tolerance was agreed.
Recent case law of the Supreme Court
For the rapporteur, Minister Douglas Alencar Rodrigues, the extension of the tolerance limit of the minutes that precede and that follow the working day beyond the five minutes established in the CLT, when provided for in a collective norm, is fully valid.
He recalled that the Federal Supreme Court established an understanding of general repercussion (Theme 1,046) that collective clauses that remove or limit rights must be fully complied with and respected, except when dealing with unavailable rights – such as rules for the protection of health and workplace safety. In the view of the rapporteur, this is not the case discussed in the process.
Labor Reform
The minister also noted that, in the same sense, the Labor Reform (Law 13,467/2017), after the appeal was filed by the STF and the Azaléia coordinator’s employment contract, clearly defined, in article 611-A of the CLT, what would be the tradable rights (working hours, hour bank, intraday break, telecommuting, working hours registration and profit sharing, among others).
Article 611-B, in turn, lists the rights that would be shielded from collective bargaining (deposits and severance pay from the FGTS, minimum wage, 13th salary, weekly rest, additional overtime, vacations, maternity and paternity leave, right strike and others). “These obviously do not include rights of an essentially patrimonial nature”, he concluded.
The decision was unanimous.
(LT/CF)
Process: RRAg-816-79.2014.5.04.0381
This article is for informational purposes only.
Source: TST