13th salary, FGTS and vacations for those who work overtime are bigger – 03/27/2023 – Market

The 13th salary, the payment of the FGTS (Senior Severance Indemnity Fund), vacations and prior notice for workers who work regular overtime will increase from now on.

Last Monday (20), the TST (Superior Labor Court) established an understanding that the effect of frequent overtime on paid weekly rest now also affects the calculation of these labor allowances.

How much that could add to the cost of payroll will depend on how much overtime employees typically do each month, lawyers say. For this judgment of the TST, the ministers considered only the overtime hours considered frequent, that is, the usual ones.

Lawyer Fernanda Garcez, partner in the Labor area at Abe Advogados, says that labor legislation does not set a parameter for what is considered regular or occasional overtime and, therefore, each case needs to be analyzed individually.

The parameter ends up being, according to Ricardo Calcini, a consultant at Chiode e Minicucci Advogados, when the recurrence is enough to generate an impact on other installments, such as paid weekly rest.

The legislation provides that each recurring overtime worked by the worker generates another hour in the calculation of paid rest, that time off generally granted on Sundays.

Until the judgment on the 20th, the TST had a jurisprudential orientation (OJ 394) that this adjustment in paid rest, caused by overtime, had no effect on the calculation of other amounts.

The rapporteur for the reanalysis of the TST case, Minister Amaury Rodrigues, said, in the judgment, that the change responds to an arithmetic question.

According to him, the usual overtime hours and the differences in paid weekly rest are autonomous portions that make up the worker’s remuneration and, therefore, both must be considered in the calculation of 13th, FGTS, prior notice and vacation.

The understanding reformed on Monday does not affect lawsuits already in progress and discussing the matter and should only be applied to overtime worked from March 20, 2023.

Until Monday’s judgment, says lawyer Fernanda Garcez, the court understood that there was a repetition when considering the effects of overtime rest on other funds. The previous understanding had been signed in 2000.

Despite the discussion on the calculation of these overtime hours having been in the Labor Court, Fernanda Garcez says that the understanding should be applied administratively, as early as this week. The application to all overtime hours since March 20, 2023 was provided for in the wording of OJ 394.