The Superior Labor Court has ruled, by a majority of votes, that it is permissible to use the exception method of recording working hours. The method is a form of recording that takes into account only the hours worked outside the working day previously established between employee and employer, with the contractual working hours prevailing if there is no indication of a change.
The issue originated in the Regional Labor Court of the 4th Region (TRT4), when the Labor Prosecutor’s Office filed an annulment action against Souza Cruz Ltda., asking for the annulment of the collective bargaining agreement signed in 2014/2015 between the employer and the Santa Cruz do Sul Tobacco and Food Workers’ Union.
The collective agreement provided for the adoption of an alternative system for controlling working hours, in which only exceptions occurring during normal working hours would be recorded. In the opinion of the Labor Prosecutor’s Office, this alternative system would be contrary to article 74, paragraph 2 of the CLT, which, in the wording in force at the time, required companies with more than ten employees to record clock-in and clock-out times, as well as not allowing them to control working hours reliably, with the possibility of the entries differing from reality.
The TRT4 ruled that the agreement should be annulled with regard to the recording of working hours by exception, and the decision was also upheld by the Specialized Section for Collective Disputes, given that, at the time, the judgment on STF issue 1.046 was still pending.
Thus, after the judgment on the general repercussion issue, the TST retracted its previous decision and, by a majority vote, decided that the collective bargaining agreement did not flexibilize an unavailable labor right – rights that cannot be waived by the worker – thus considering the negotiation that adopted the working hours by exception to be valid.
This shows that the TST, in line with current socio-economic and political guidelines, as well as the evolution of the labor legislation amended in 2017, allows the professional union and the company, through collective bargaining, to negotiate the way in which attendance control will be exercised, as long as they safeguard workers’ rights.
The decision sets an important precedent for employers with regard to the way in which working hours are recorded, allowing the adoption of the method by exception, which is beneficial to companies because it makes it easier to control the hours worked by employees.
Although it is a method that brings practicality to companies’ controls and routines, it is important for employers to be aware of possible fraud. If an employee is absent and doesn’t clock in, it will be assumed that the services were regularly provided that day.
In addition, it is important to note that if employees and employers choose to clock in by exception, they must register the change by means of an individual or collective agreement, thus avoiding future allegations of nullity.
Likewise, in order to adhere to the best method of controlling working hours, according to the business and culture of each company, it is important to work together between the personnel department and the legal department, in order to mitigate risks and bring security to the business.
If you have any questions on the subject, our labor team is on hand to answer them.
