Jayme Petra de Mello Neto
Lawyer at Marcos Martins Advogados
According to article 71, “caput”, of the Consolidated Labor Laws ( CLT ), any work that exceeds the duration of six ( 6 ) hours a day must grant a rest and meal break of at least one ( 1) hour, unless otherwise agreed in a written agreement or collective bargaining agreement, but not exceeding a break of more than two (2) hours.
If the Employer, whether an individual or a company, does not grant this break, or grants it only partially, it must compensate the worker as follows:
- Art. 71, §4, of the CLT (inserted by the Labor Reform
- Reform – Law No. 13,467, of 2017): payment of
- only for the time taken off, plus 50% (fifty percent) of the normal hourly wage.
- of work.
- Precedent 437, item I, of the Superior Labor Court – TST
- TST: full payment of the
- corresponding period, i.e. at least one ( 01 ) hour, and not just the
- of the suppressed period, with an increase of 50% (fifty percent) on the value of the remuneration for the normal working hour.
- of work.
Prevalence, in turn, remains in view of the provisions of the TST Precedent.
In case no. 0001384-61.2012.5.04.0512, pending before the TST, originating in Brasília, the lawyer for the Claimant took the view that the intra-day break will not be fully compensated by the Employer, if the maximum variation does not exceed 10 (ten) minutes.
She also suggested that the TST should use in this case the novelty brought about by the Labor Reform, thus condemning the Employer only to pay for the suppressed minutes, and not the entire hour of the break.
The lawyer for the Brasília Union of Hospitals, Healthcare Homes and Clinics, on the other hand, took the view that the minimum variation in the intra-workday break should not be included in the full payment, as long as it does not exceed five (5) minutes.
In other words, a worker who takes a 58 (fifty-eight) minute break, on a day when his work exceeds 06 (six) hours, will not be paid any overtime with its increase, since the variation of 05 (five) minutes has not been exceeded.
On March 25, 2019, the Full Bench of the TST, in turn, by a majority vote, declared that if the variation in the intra-workday break does not exceed five ( 05 ) minutes, it will not result in overtime pay with an increase of fifty percent (50% ), provided that this variation is random/effectively variable, i.e. one day 58 (fifty-eight) minutes, another day 56 (fifty-six) minutes, and that it is not an obligation imposed by the Employer (individual or legal entity).
It is understood, therefore, that the Collegiate TST established the aforementioned thesis precisely so as not to incur illicit enrichment by the party, fraud or any disproportionality.
