Jayme Petra de Mello Neto
Lawyer at Marcos Martins Advogados
The Fourth Panel of the Superior Labor Court reversed a decision that ordered a company to pay overtime for failing to present the full working hours records of an employee who claimed overtime, due to collective bargaining agreement provisions.
The employee was hired by the company with flexible working hours, and had to clock in by exception, i.e. only when overtime or on call was worked.
The lawsuit was upheld on the grounds that it was the employer’s responsibility to submit the attendance records required by article 74 of the CLT, and that failure to do so would generate a relative presumption of veracity of the working hours alleged in the lawsuit by the plaintiff, a decision confirmed by the Regional Court of the 2nd Region.
However, in a unanimous decision, the Superior Court ruled that collective bargaining was valid, under the terms of article 7, XXVI of the Federal Constitution, as well as the application of article 611-A, item X of the CLT.
With this decision, the case law of the Superior Court is in line with the changes made to labor legislation, especially with regard to the prevalence of negotiated vs. legislated, which brings greater legal certainty to employers when collective bargaining is carried out.
