Diego Henrique Gonçalves
Lawyer at Marcos Martins Advogados
The employment contract is a legal transaction like any other in which the parties (in this case, the employee and the employer) must observe the uniform balance of the agreement.
This is necessary because the objective negotiated in this agreement is special, given that it involves human labor, and it is impossible to separate the object of the transaction from the person negotiating it.
Human beings are versatile, easily adaptable to many situations and have the quality of flexibility when performing any activity. For this reason, it is possible for the same activity to be carried out in different ways, all with the same goal in mind. This is because the way to achieve a result is often in the hands of the individual handling it.
The question is: what happens when this human versatility turns against the employee?
This is often demonstrated when the employee claims a wage difference in court due to ACUMULATION OF FUNCTION or MISUSE OF FUNCTION.
Such claims always tell of the same fact: the contractual decompensation in any case resulted in (i) the accumulation of tasks which had not initially been previously negotiated; (ii) changes in activities during the course of employment and (iii) work overload due to the concentration of activities in one person.
The law is extremely simple on this subject. Expressly, only article 456, sole paragraph, of the CLT, applies a generic concept to the employment contract, thus providing.
Article 456. Proof of the individual employment contract shall be made by the notations on the professional card or by written instrument and shall be supplied by all means permitted by law.
Sole paragraph. In the absence of proof or if there is no express clause in this regard, it shall be understood that the employee has obliged himself to any and all services compatible with his personal condition.
And that’s it. It can be seen that the law has opted to use the flexibility of the human being to the advantage of the employer, and such a restriction on labor flexibility will only be lawful if there is a contractual provision.
On the other hand, the only law that deals specifically with the subject is Law 6615/78, which regulates the profession of radio broadcaster. Article 13 of this law reads as follows:
Art. 13 – In the event of accumulated duties within the same sector in which the activities mentioned in art. 4 unfold, the Broadcaster will be guaranteed a minimum additional of:
I – 40% (forty percent), for the accumulated function, based on the best paid function, in broadcasters with power equal to or greater than 10 (ten) kilowatts and, in companies equated according to the sole paragraph of art. 3;
II – 20% (twenty percent), for the accumulated function, based on the best paid function, in broadcasters with a power of less than 10 (ten) kilowatts and more than 1 (one) kilowatt;
III – 10% (ten percent), for the accumulated function, based on the best paid function, for broadcasters with power equal to or less than 1 (one) kilowatt. (emphasis added)
It is therefore clear that there is a shortage of regulations to substantiate the frequent claims for differences in salary due to the accumulation or deviation of functions made by workers in the labor courts.
For this reason, it is very common to see decisions dismissing claims for wage differentials simply because there is no legal basis for them, in verbis:
PLAINTIFF’S APPEAL. ACCUMULATION OF FUNCTIONS. According to the rule contained in article 456, sole paragraph, of the CLT, in the absence of proof or in the absence of an express contractual clause, it is understood that the employee obliged himself to any and all services compatible with his personal condition. This is because, in the labor legal system, there is no provision for the payment of several functions performed for the same employer, within the same working day. (TRT-4 – RO: 00011987220105040006 RS 0001198-72.2010.5.04.0006, Rapporteur: MARIA CRISTINA SCHAAN FERREIRA, Date of Judgment: 06/06/2013, 6th Labor Court of Porto Alegre)
It should be pointed out that the employment contract, just like any other contract, must provide legal security capable of perpetuating the provision of work without either party being surprised over time.
For this reason, even in the absence of legal grounds, it is possible to find judgments accepting the workers’ arguments in order to prevent unlawful enrichment on the part of the employer. In this sense:
ACCUMULATION OF FUNCTIONS. WAGE DIFFERENCES In the event that the company goes beyond its prerogative to vary the employee’s tasks, it must take care to pay him for the accumulated work. As it has not done so, it has unlawfully enriched itself, as it has benefited from the greater burden of responsibility imposed on the worker without giving him due compensation. Liability for payment of the differences inherent in the management position recognized, as duly proven. Rapporteur: Judge Marcelo Antero de Carvalho Appellant: LUPATECH – EQUIPAMENTOS E SERVIÇOS PARA PETRÓLEO LTDA Defendant: CARLOS EDUARDO COUTINHO DIAS REPORT (TRT-1 – RO: 00012632920135010432 RJ , Rapporteur: Marcelo Antero de Carvalho, Date of Judgment: 24/09/2014, Tenth Panel, Date of Publication: 02/10/2014)
Therefore, it can be concluded that, just as it is not fair to reduce the salary of an employee who has become more idle due to a drop in demand for work, it also does not seem right that this same employee should be forced to perform an extraordinary effort of work not raised at the beginning of the contract without the corresponding salary adjustment, even if there is no express legislative provision on the subject.
