Paloma da Silva Aguiar
Lawyer at Marcos Martins Advogados
The Labor Reform contained in Law No. 13,467 of November 2017 brought numerous changes, not only for workers, but also for companies themselves. One of the changes concerns the hours spent on the road, which are nothing more than the hours spent by the worker on the way to and from work.
Before the Labor Reform, it was observed that, if the employee found it difficult to travel from home to work or if this route did not have the support of public transport, the employer could provide its worker with the appropriate transportation, either by means of the company’s own vehicle or by means of a charter, and then the employee would be entitled to the payment of the hours called in itineres.
However, with the change provided for in Law No. 13,467/2017, regardless of the employer’s provision of transportation, the time spent by the employee commuting from home to work, and vice versa, would no longer oblige the employer to pay the hour in itinere.
In view of this change, the following question arose for the Judiciary: Will an employment contract signed between the parties on May 10, 2017, for example, which provided for the monthly payment of hours in itineres to the worker, or any other change provided for in the Labor Reform, no longer have the same effect because of the change?
The Superior Labor Court (TST) has ruled that, as the payment of these hours is considered beneficial to the worker, the principle of protection must be observed, not least because the worker is the weakest link in the relationship and, therefore, even with the change in the rule, the employer cannot fail to pay these hours to his employee.
This understanding of the TST, in turn, would observe any other effective payment to the worker, even if it were changed by the new Labor Reform. However, if there is no withdrawal of the worker’s monthly benefit, the rule in force, i.e. the most current one, would prevail.
If that weren’t enough, it is worth noting that Provisional Measure No. 808/2017 provided for the reform to be applied to current contracts, regardless of compliance with the principle of protection or the worker himself; however, this measure was not converted into law and has certainly lost its validity.
Thus, whatever the benefit, it must be paid to the worker for as long as the condition persists, even after the new law (Labor Reform) comes into force.
The conclusion is that, according to the TST, the application of the Labor Reform, when detrimental to the employee, will not have any effect on employment contracts already in force.
