Salary: TST authorizes negative hourly bank discount – 03/06/2024 – Market

The Second Panel of the TST (Superior Labor Court) recognized the validity of a collective agreement that authorizes salary deductions in the event of a negative hourly rate.

The decision, published on March 1st, was taken unanimously by the three members of the group and was reported by Minister Maria Helena Mallmann.

The members of the group recognized that what was agreed supersedes what is legislated, according to the change in the CLT (Consolidation of Labor Laws) brought about by the 2017 labor reform.

The decision is in line with what the STF (Supreme Federal Court) has already defined, in case of general repercussion, in which the constitutionality of the rule that allows the reduction of labor rights as long as it is in a convention or collective agreement was confirmed.

For experts, the TST’s decision sets a precedent, but it should not become the norm and cannot be applied in individual agreements.

“This type of collective bargaining seems absolutely possible to me, but it is in fact a different case. We cannot understand that in all hypotheses this is possible, and the TST said: [é possível] only when there is a collective agreement or convention”, says lawyer Ricardo Pereira de Freitas Guimarães, doctor in labor law.

The process refers to a collective agreement in Londrina (PR), between PZL Indústria Eletrônica Ltda. and the Union of Workers in the Metallurgical, Mechanical and Electrical Material Industries of Londrina and the Region.

The convention establishes that the employee must work eight hours a day and 44 hours a week. If you do not fulfill the workload and have a negative time bank, there may be a salary deduction corresponding to the hours owed at the end of 12 months or in the event of a resignation or motivated dismissal.

Likewise, in the case of a positive balance, says the convention, it is possible to compensate for the period worked afterwards — with time off —, according to the time bank, or the company must pay overtime with an additional 50%, as determined by the Constitution.

The MPT (Public Ministry of Labor) in Paraná, however, challenged the collective agreement signed by the union and tried to stop its effects, in addition to asking for compensation for collective moral damages.

The body argued based on the principle “in dubio pro misero”, which establishes that, in the possibility of different interpretations, one must decide on the one most favorable to the worker.

The ruling states that the MPT argued that “the provision of salary discounts when the hour bank balance is negative only brings harm to the worker”, in addition to reinforcing that other regional courts have decided that it is inadmissible to “transfer the burden of economic activity to the worker” and that collective clauses of this type are void.

Different instances of the Labor Court, however, denied the argument.

The TST recognized that a previous understanding established that there could not be a discount due to “the absence of legal provision, as well as because it constitutes a transfer of the risks of economic activity to the worker”.

The Second Panel changed this position in the judgment on February 21st and aligned itself with the STF jurisprudence. When attesting to the constitutionality of what was agreed on what was legislated, the Supreme Court said that collective agreements are valid even if they limit rights.

Therefore, the understanding in the TST is that the discount, “in itself, is not incompatible with the Federal Constitution, international treaty or occupational health and safety standards”.

“In fact, at least as a rule, the autonomous rule in question offers the worker the chance to compensate within a period of 12 (twelve) months for absences and delays before payroll deduction”, says the TST decision.

“It should be noted that there is no record of any malicious behavior by the employer in terms of surprising its employees by hiding the negative balance of the ‘time bank’ from them or intentionally preventing them from clearing the debt.”

Lawyer Cíntia Fernandes, partner at Mauro Menezes & Advogado, states that, in December, the TST confirmed the regional decision of the Labor Court authorizing salary deductions in the case of a negative bank, but did not debate the merit itself.

According to her, conventions may contain clauses of this type, but cannot provide for the suppression of so-called unavailable rights, such as FGTS (Service Time Guarantee Fund).

“Unavailable rights are considered valid regardless of the worker’s wishes. Therefore, once the collective norm is established, even if it is not favorable to the employee in all its clauses, it will be valid for the determined period”, he says.

The lawyer states that the discount does not affect funds such as the FGTS itself and the 13th salary, for example.