Jayme Petra de Mello Neto
Lawyer at Marcos Martins Advogados
On April 30, 2019, in the virtual plenary session, the Justices of the Federal Supreme Court analyzed an appeal against a TST decision that discussed the suppression of hours in itinere, i.e., the hour spent commuting to and from work, in a vehicle provided by the company, as long as it is provided for in a collective bargaining agreement.
The case in question involved a Labor Claim brought by a former employee who claimed payment of the hours in itinere plus a 50% surcharge and reflexes, which had been suppressed by a collective agreement signed between the entities representing the union bases and the company he worked for.
The claim was dismissed at first instance. However, the judges of the Regional Court of the 18th Region overturned the sentence and ordered the company to pay the hours in itinere. The Superior Labor Court upheld the TRT’s decision on the grounds that the prevalence of collective private autonomy is limited by the principles of the legal system as a whole, including the actions of trade unions in relation to abusive clauses that provide for the waiver of rights.
The company, dissatisfied with the decision handed down by the TRT, filed an extraordinary appeal with the STF, arguing that the collective bargaining agreement, in which it was established that the hours in itinere would not be paid, should be upheld, due to the principle of the prevalence of the collective bargaining agreement and the autonomy of the will of the contracting parties.
With regard to the hours in itinere in this case, the Justices of the Supreme Court understood that this is an available right, which was even suppressed by the labor reform (Law No. 13,467/17), and may be subject to the autonomy of collective will expressed through collective agreements and conventions, and by not recognizing the validity of the collective negotiations, the Court of origin violated art. 7, item XXVI, of the Federal Constitution.
In this way, given that the discussion is about the validity of collective rules that limit or restrict labor rights, the Federal Supreme Court, under Justice Gilmar Mendes, decided to review the theses established in themes 357 and 762, recognizing the matter as a general repercussion.
Therefore, in ARE 1121633, the collective agreement signed between the parties was considered valid, even if it provides for the reduction of labor rights, with the exception of absolutely unavailable rights, which are constitutionally guaranteed.
