Brazil: Court Admits The Fractionation Of The Period For Rest And Meal Of Rural Workers

Last Updated: 18 February 2013
Article by Luiz Paulo Marques

The Subsection 1 Specializing in Individual Bargaining (SDI-1) considered groundless the payment of overtime by the company Usina de Açúcar Santa Terezinha Ltda, placed in Paraná, since it deemed legitimate the concession to its workers of two periods of one hour each for rest and meal.

The decision of the Labor Court of Umuarama (PR) had recognized the right of an employee to receive an extra hour per day, since the judge understood that Law No. 5.889/73 allows the deduction of only one period.

The company appealed to the Regional Labor Court of the 9th Region (PR) arguing that the article 5 of Law No. 5.889/73 (Rural Worker Statute) authorizes the granting of the period for rest and meal according to the traditions of the region. However, the decision was upheld.

Contrary to the decision of the Panel, Minister Lelio Bentes Corrêa, reporting judge of the motion, clarified that the Decree No. 73.626/74, which regulated Law No. 5.889/73, fixed a period of at least one hour, according to the regional culture.

The reporting judge also noted that, according to article 71 of the CLT, the period for rest and meal will be of at least one hour and at most two hours, and it may exceed the maximum limit if the collective bargaining convention foresees it. So, the reporting judge considered legal the form used by the company, since it observed the regional culture, allowing the employee to interrupt his/her work for lunch and later for coffee.

Case No.
RR-586085-14.1999.5.09.5555

Employer Will Have His Name Excluded From The "Black List" Of Slave Labor

The 6th Panel of the Superior Labor Court (TST) upheld the decision of the Regional Labor Court (TRT) of the 10th Region, which determined the exclusion of a farmer's name from the registration form of employers fined for exploiting slave labor.

The "black list" was created in 2003 by the MTE (Ministry of Labor and Employment) in order to combat slave labor and to inform the society the names of the employers caught exploiting workers in a condition analogous to slavery.

The farmer who had his name inserted on the list filed a writ of mandamus against the National Coordinator of the Special Moving Inspection Group of the Department of MTE (Coordenadora Nacional do Grupo Especial de Fiscalização Móvel da Secretaria de Inspeção do MTE) claiming that although he had regularized the situation and fulfilled the legal obligations, his name remained inscribed in the registration form.

The farmer required his exclusion from the registration form; however the MTE denied the request, insisting that the farmer still had workers under conditions analogous to slavery. With financial problems and unable to obtain bank credit, he filed a writ of mandamus with a preliminary injunction in the Labor Court in order to have his name deleted from the list.

The TRT ordered the removal of the farmer's name from the registration form and denied the motion to review filed by the Federal Government.

O TRT determinou a retirada do nome do agricultor do cadastro e negou seguimento a recurso de revista para o TST. Then the Federal Government appealed to the TST, calling into question the grounds of the decision.

According to the reporting judge, Minister Augusto César de Carvalho Leite, the construction of the TRT was that the employer had already complied with the determinations imposed, paid the fines and had no recurrence.

Case No.
RR-642-57.2010.5.10.0021

Superior Labor Court Invalidates The Compensation Agreement In Unhealthy Activity Without Previous Authorization Of The Ministry Of Labor And Employment

The 8th Panel of the Superior Labor Court (TST) sentenced the company Busscar Ônibus S/A to the payment of overtime to an employee whose work is considered unhealthy. The individual agreement of compensation of working hours entered into with the company was considered invalid since it did not have the authorization of the Ministry of Labor and Employment (MTE).

The thesis of the company, previously upheld by the Regional Labor Court of the 12th Region (TRT-SC), was for the legality of the agreement. The TRT understood that the clearance system that allowed the employee commitment to extend the workday on 48 minutes, depended on approval of the competent authorities in the field of work hygiene.

However, the reporting judge of the worker's motion to review, Minister Dora Maria da Costa, considered the need for prior license of the competent authorities, as stipulated by article 60 of the Consolidated Labor Laws (CLT). She recalled that Precedent No. 349, which admitted the agreement, was cancelled last year by Resolution No. 174/2011.

Case No.
RR-1377-51.2010.5.12.0016

Commissions "Under The Table" And Lack Of Overtime Payment Allow The Indirect Termination Of The Employment Contract

Based on the vote of Judge Eduardo Aurélio Pereira Ferri, the 1st Panel of the Regional Labor Court of Minas Gerais (TRT-MG) upheld the decision of the lower court judge who declared the indirect termination of the employment contract of a seller.

Besides not receiving commissions "under the table", the overtime were not paid as well. According to the Panel, these faults, together, configure breach of contractual obligation, which ultimately prevent the continuity of the employment bond.

The defendant appealed of the decision alleging that the commissions were correctly paid and that there was no irregularity on the payment of overtime. The defendant also argued that the seller abandoned his job.

However, the reporting judge did not accept these arguments. He explained that, in order to characterize the motivated dismissal of the employment contract, the fault must be severe enough to become unbearable the maintenance of the employment bond.

And, in the judge's opinion, it was proved in the case records that the defendant successively and repeatedly violated contractual obligations, a conduct which became severe. The company demanded that the seller worked overtime in excess not paying them. Furthermore, the company paid in excess most of the "under the table" remuneration.

For the judge, it was demonstrated in the case that the paid commissions exceeded the amounts recorded in the paychecks. In this sense, the reporting judge noted that "such violations (the nonpayment of overtime and the payment of the commissions "under the table") together constitute failure severe enough to give rise to indirect termination of the employment contract, according to item d of article 483 of the Consolidated Labor Laws (CLT)."

The judge also pointed that the employee did not need to react to the employer's faults during the employment contract, since the immediacy criterion was observed in the sense that the offenses were being renewed day by day and the seller filed a labor claim at the earliest opportunity claiming the indirect termination of the employment contract.

Therefore, after analyzing all the elements of the labor claim, the reporting judge concluded that the faults committed by the employer made inevitable the termination of the employment contract, reason why maintained the indirect termination of the employment stated by the lower court judge, in accordance with article 483, d, of the CLT.

Case No.
ED 0001207-93.2011.5.03.0081

Pictures Produced By The Employee During The Employment Bond Constitute His/Her Intangible Property

In a court decision of the 1st Panel of the Regional Labor Court of the 2nd Region (TRT-SP), the superior court judge Lizete Belido Barreto Rocha understood that with the limitations imposed by the labor legislation, it is applicable to the employment contract the Law No. 9.610/98, which amends, updates and consolidates the copyright law.

Thus, the superior court judge concluded that the photos produced by the worker during the employment bond comprise his/her intangible property. On the other hand, the employment contract assumes the use of the photos by the employer, and the salary includes the copyright.

In this case, the employer, the holder of the asset interest over the product of the work of the claimant, may change the pictures or even use them after the termination of the employment bond, being needed, however, the express consent of the commercialization and / or transfer of these photos. Another fact is that the indication of the authorship in the publication is also mandatory.

Therefore, unanimously, the 1st Panel partially upheld the appeal of the worker.

Case No.
RO 00000688920105020301

Company Is Ordered To Indemnify And To Reintegrate A Worker Who Was Fired After Cancer Diagnosis

Labor Court (TRT) sentenced in R$ 30,000.00 for moral damages a company that fired a worker over 60 years, prostate cancer patient.

The dismissal occurred two months after the discovery of the disease, when the worker was already in treatment. In addition to the indemnification for moral damages, the court decision also ordered the readmittance of the claimant in the employment in the same conditions prior to dismissal.

The court decision reversed the decision issued by the judge of the 2nd Labor Court of Paulínia, who had dismissed the employee's request, under the argument that "it was not proved the knowledge of the disease by the employer and, therefore, there is no evidence of the chain of causation between the cause of the disease and the termination of the employment contract."

The decision also noted that the medical certificates in the course of the employment contract did not indicate that the claimant was a prostate cancer patient. Therefore, the judge did not consider the dismissal as a discriminatory act, but only due to reduction of workforce.

The reporting judge of the case, superior court judge Fabio Grasselli, noted that the document brought by reveals that the worker was a prostate cancer patient.

The court decision also noted that the claimant proved by documents that he needed radiotherapy, despite having undergone surgery in order to remove the prostrate.

The decision also recognized that in the event of a worker with serious disease, "the work does not lend itself only to provide means of survival and health treatment for the patient, but also helps in a therapeutic way, keeping the patient in contact with colleagues, helping them to feel useful and continue the work that life gave them to accomplish."

The understanding was also based on the fact that the employee is over 60 years old and is still in medical treatment, which greatly hinders his return to the labor market.

The court decision concluded, then, remembering that the Brazilian economic order is governed by the principle of the social function of property (article 170, III, of the Federal Constitution), and the right of the employer to dismiss, in the case under review, must find limits to protect a greater good: the human life.

Case No.
0000588-92.2011.5.15.0126

The Senate Committee Approves The End Of The Extra Fine Of 10% Of The FGTS

The project foresees the end of the fine until 1st June, 2013, when the text will have its processing completed. The Senate took the first step to abolish the payment of the fine of 10% charged from the companies on the amount of FGTS in cases of dismissal without cause.

The change has no relation with the fine of 40% paid by employers to employees in dismissals without cause, as foreseen by Brazilian law.

The payment of the fine was created in 2001 accomplishing court decisions which forced the fund to compensate employees affected by former economic plans – among them, the Summer and Collor 1 Plans (Plano Verão e Plano Collor 1). At the time, the estimated shortfall in the accounts of the fund was R$ 42 billion.

The reporter of the Project, Romero Jucá, said that since 2010 the fund accounts are balanced, reason why the payment must be extinguished.

The project foresees that the end of the fine go into effect on June 1st, 2013, when the reporter estimates that the text will have complete its course in the House and Senate. With the approval on the CCJ, the project goes to the Senate's full session - then to the House.

It Is Configured The Abandonment Of Employment By The Employee If There Is No Good Cause Given By The Employer

In a court decision of the 9th Panel of the Regional Labor Court of the 2nd Region (TRT-SP), federal judge Maria da Conceição Batista understood that the employee may only request the indirect termination of the employment bond, being absent from his duties, when the employer does not fulfill the contract obligations, or when the employee has his work reduced by the employer, affecting the amount of the wages to be received.

The understanding of the judge is based on items "d" and "g", as well as in paragraph 3, of article 483 of the Consolidated Labor Laws (CLT), which establishes that the employee may consider canceled the employment contract - with leave of the duties - if the employer does not fulfill the contract obligations of if there is reduction of work. Thus, the assumption of termination of the employment contract based on alleged moral harassment is not covered by the fore mentioned article.

Therefore, the superior court judge concluded that there is abandonment of employment if the alleged reason is not configured for the good cause (indirect termination of the employment contract), especially when the employee does not attend the employer's call to resume their work activities.

The construction is in accordance with recent decision of the Superior Labor Court (TST), which says, "if it is not demonstrated any misconduct of the employer and it is evidenced the spontaneous termination of the claimant, including refusal to return to his duties after being notified, the abandonment of employment is set as a reason to the termination of the employment bond."

Case No.
RO 02700008020095020087

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