Amanda Caroline Azevedo Soares
Trainee at Marcos Martins Advogados
As established by article 73, caput, of the CLT, night work must be paid differently from day work, due to various social and biological aspects, so that companies must comply with the obligation to pay an additional bonus of at least 20% (twenty percent) over the daytime hour.
In addition, in view of these aspects already mentioned, the duration of night work is reduced, that is, under the terms of the law, the night hour is 52 (fifty-two) minutes and 30 (thirty) seconds long (art. 73, §1 of the CLT).
In many respects, this provision is detrimental to companies, especially when it comes to working shift work.
Thus, using the premise established in the labor reform, some companies have signed collective bargaining agreements providing for nighttime hours to be equal to daytime hours.
In its analysis of this issue, the Superior Labor Court has consolidated its understanding that it is possible to increase the fictitious nighttime hour beyond what is provided for by law, by means of a collective agreement or convention, provided that there is also an increase in the percentage paid as a nighttime bonus.
This can be seen from a recent decision handed down by the first panel of the Superior Labor Court, in which it considered valid a collective bargaining agreement that provided for an increase in the night time hour to 60 minutes instead of 52 minutes and 30 seconds, as per the decision’s summary:
REVIEW APPEAL FILED BY THE DEFENDANT. NIGHT SHIFT OF 60 MINUTES. PROVISION IN COLLECTIVE BARGAINING AGREEMENT. NIGHT-TIME BONUS HIGHER THAN THAT PROVIDED FOR BY LAW. VALIDITY. THE JURISPRUDENCE OF THIS HIGHER COURT IS FIRM IN THE SENSE THAT THE COLLECTIVE BARGAINING AGREEMENT SHOULD BE HONORED WHICH, WHEN SETTING THE NORMAL DURATION OF SIXTY MINUTES FOR THE NIGHT HOUR, PROVIDES, ON THE OTHER HAND, FOR THE PAYMENT OF A NIGHTTIME BONUS IN A PERCENTAGE HIGHER THAN THE AMOUNT GUARANTEED IN ARTICLE 73 OF THE CLT. IN THIS CASE, THERE IS NO MERE SUPPRESSION OR EVEN REDUCTION OF A LEGALLY ESTABLISHED RIGHT, BUT AN EFFECTIVE SITUATION OF MUTUAL CONCESSIONS, THROUGH COLLECTIVE BARGAINING, AS PROVIDED FOR IN ART. 7, XXVI, OF THE FEDERAL CONSTITUTION. THE REGIONAL RULING DISAGREED WITH THIS UNDERSTANDING[1].
As pointed out by the Court, this understanding does not violate the intelligence of article 611-B of the CLT, since it is clear that this is not a suppression of any employee right, but rather a mutual concession in favor of the work activity, arising from the agreement of wills signed between employee and employer through the employment contract.
Thus, decisions such as the one mentioned above show that despite the unfavorable position of the lower courts, the Supreme Court has been trying to provide legal certainty to the parties, under the terms of the legislation in force and with a view that no longer protects the employee, but rather points out that the employment relationship is an agreement of mutual concession between the parties.
Hence the importance of seeking effective judicial provision by exhausting the appeals process as a measure of justice, which is only possible through the effective work of a law firm specializing in this issue and the necessary technique to overcome all the barriers created by the legislator and make it possible to analyze the appeal.
[rock-convert-pdf id=”13325″]
[1] BRAZIL. Superior Labor Court (1st Panel). Appeal No.
1020-96.2012.5.09.0012. Review appeal filed by the defendant. Night time of 60 (sixty) minutes. Provision in collective bargaining agreement. Night-time bonus higher than that provided for by law. Validity. Appellants and Respondents: Roger Jakson Rosa Kozlovski and Spaipa S.A. – Indústria Brasileira de Bebidas. Rapporteur: Minister Walmir Oliveira da Costa, February 5, 2020.
² MEIRELES, José Gervásio. The flexibilization of the right to additional and fixed night hours. Gran Cursos Online. 20 jan. 2020. Available at: https://blog.grancursosonline.com.br/a-flexibilizacao-do-direito-ao-adicional-e-da-hora-ficta-noturna/. Accessed on: February 27, 2020.
