STF: postmen have the right to accrue additional payments; understand – 09/07/2023 – Market

The STF (Federal Supreme Court) decided that postmen have the right to accrue two extras —one for outside work and another 30% for dangerous work— if they drive a motorcycle. The decision ends an impasse of almost ten years between Correios and workers.

The judgment came to an end on Friday (1st), in the virtual plenary, and confirmed the decision of the TST (Superior Labor Court) of 2022, which granted the additional.

The court analyzed an ARE (grievance in extraordinary appeal) from the Post Office, which tried to reverse the understanding of the TST. For the state-owned company, the additional payments could not be paid cumulatively.

In its appeal, the public company stated that the accumulation of the two bonuses was unconstitutional. He also claimed that, as he paid the other benefit, already provided for in a collective agreement, he should not have to pay the new additional benefit, approved by law in 2014.

As an argument, he used the rule of the 2017 labor reform, which deals with the prevalence of the agreed upon the legislated, that is, the collective labor agreement over the legislation.

“The collective agreement enshrines the principles of autonomy of the will of the parties, one of the expressions of the constitutional principle of freedom, creates specific rules for the professional category, considering its peculiarities, which ended up falling apart by allowing the undue accumulation of the additional distribution and collection activity and the additional one for dangerous work”, says Correios in the process.

The impasse began after the approval, in 2014, of Law 12,997, which modifies the CLT (Consolidation of Labor Laws) and includes the activity of motorcycle freight and motorcycle delivery as one of those that guarantee the right to the premium for dangerous work provided for in the Federal Constitution, of 30 % on salary.

The category then began to claim the new additional fee for postmen. However, according to Correios, these professionals already received the AADC (External Distribution or Collection Activity Additional), also 30% of the base salary. In 2008, the bonus was R$ 279.10.

The benefit was established by a collective bargaining between Correios and workers, due to the “strict and exhausting conditions [do trabalho]such as exposure to the sun and dehydration”. Last year, however, the TST recognized that postmen who work with motorcycles have the right to also receive the premium for dangerous work.

In the judgment at the STF, Minister Rosa Weber, rapporteur of the case and president of the court, highlighted in her vote that nothing prevents the payment of the two additional payments, cumulatively, to the worker. “In the case of postmen driving motorcycles, there is an effective cumulative subjection of the worker both to the specific risks of traffic and to the serious working conditions in the external collection of postal objects”, she said.

José Aparecido Gandara, president of Findect (Interstate Federation of Employees of the Brazilian Post and Telegraph Company), says that there were attempts at negotiations with the Post Office. “In 2014, when the law came into effect, the company claimed that it had already paid the AADC, which led to an impasse, as our interpretation is that the hazard pay is different from the AADC. to guarantee the payment of both additional”, he explains.

Retired labor tax auditor Lucy Toledo das Dores Niess says that what was established in the collective bargaining has the force of law, therefore the AADC cannot be withdrawn. According to her, after the decision of the STF, it is only up to the Correios to embargo declaration, which is when a point that was not clear in the judgment is contested, and not the decision itself.

For Gandara, justice has been done. “We were able to demonstrate that the workers were being harmed and that the additional ones are legally distinct”, affirms the unionist.

In a note sent to Sheet, Correios said they are reviewing the judgment “to assess the next referrals”. The STF decision is retroactive to October 2014.

Núbia de Paula, a lawyer specializing in labor law, says that the Supreme Court’s position guarantees greater security for workers. “From the moment they have the additional risk recognized by the Constitution and by statute, there is much greater protection, which is guaranteed by law”, she explains.

The lawyer explains, however, that because it is retroactive to 2014, the STF decision increases federal revenues, without a specific law, which harms the financial health of the state-owned company. “It harms the state-owned company because it will have a higher expense, which was not foreseen. The company may have to program itself financially, depending on the impact”, she says.