If the employer provides the most favorable condition for their employees, for example, reduced working hours, the advantage is incorporated into the employment contract and may only be amended with the consent of both parties, as provided in article 468 of the Consolidated Laws Labor (CLT). Therefore, the employer who provides working hours higher than the one that was already being performed is obliged to pay overtime due to the amendment.
In a case judged by the Regional Labor Court of the 3rd Region (TRT-MG), the employer stated that in 1998 he restructured its staff and changed the workweek of 32 hours and 30 minutes to 44 hours, however, he alleged that maintained all the advantages gained by employees hired until the date of the amendment, including the reduced working hours.
In the case of the claimant, he was appointed to perform position of trust, whose journey is 44 hours per week, and he accepted by his own free will and began to receive bonus due to the new duties. However, judge Júlio Bernardo do Carmo reached a different conclusion.
As stated by the reporting judge, since the amendment of the working hours, determined unilaterally by the company, the employee, who used to perform working hours of 32 hours and 30 minutes, started to perform working hours of 44 hours per week, without the payment of overtime.
Thus, despite the increasing of the number of working hours, there was no corresponding increase in salary. The witnesses stated that there was no option for the previous working hours and that amendment was mandatory. Therefore, the judge concluded that there was a harmful salary change for the employee since he performed overtime without the corresponding payment.
Case No. ED 0002178-97.2011.5.03.0010
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