The structuring of positions and the classification of employees as holders of positions of trust, in addition to typical management positions, has proved to be a challenge for many companies. One of the most critical points is how to reduce the risk of judicial disqualification of the position of trust, which would consequently lead to the payment of overtime.
According to article 62, II, of the Consolidated Labor Laws (CLT), employees who hold management positions and receive a bonus equivalent to at least their actual salary plus 40% are considered to hold positions of trust.
In the case of typical management positions, with a high standard of compensation, companies do not face major challenges in classifying and proving the position of trust in court.
Similarly, when it comes to lower positions in the company structure, companies do not tend to take greater risks, as they track the working hours of these employees.
But what about positions where identifying management powers is not so easy? In many cases, for example, even with high salaries (employees with sufficient bargaining power), the employee may not have full management and supervisory powers. This highlights the subtlety of the characteristics that define a position of trust. Employees who hold specialist positions in Y careers also find themselves in gray areas.
In this scenario, collective bargaining can serve as an important instrument to give legal certainty to the classification of positions of trust made by companies, taking into account their specificities and their organizational structure of positions and salaries.
This is because article 611-A of the CLT is direct in stating that the collective bargaining agreement takes precedence over the law when it comes to identifying positions that are classified as roles of trust. In other words, the collective bargaining agreement can establish which roles/positions in the company are considered to be of trust and therefore not entitled to overtime.
It is worth noting that the validity of collective bargaining rules that limit or restrict labor rights not guaranteed in the Constitution has even been validated by the Federal Supreme Court (STF) in the judgment of Topic 1,046.
This possibility has also already been analyzed by the Labor Courts. In a recent decision, the Superior Labor Court (TST) validated the identification of positions of trust in a collective bargaining agreement. At the time, the employee claimed that he did not have management powers, but the collective bargaining agreement expressly stated that the position he held was one of trust.
The TST, ordering that the collective bargaining agreement must be respected, validated the position of trust, upholding the decision of the Regional Court of Labor Appeals:
APPEAL IN INTERLOCUTORY APPEAL IN APPEAL FOR REVIEW. GOVERNED BY LAW 13,467/2017. MANAGEMENT POSITION. CLASSIFICATION UNDER ARTICLE 62, II, OF THE CONSOLIDATED LABOR LAWS. PROVISION IN COLLECTIVE AGREEMENT. VALIDITY. TOPIC 1,046 OF THE GENERAL REPERCUSSION LIST. JUDGMENT BY THE FEDERAL SUPREME COURT IN ARE 1121633. ALIENABLE RIGHT. PREVALENCE OF THE COLLECTIVE RULE. TRANSCENDENCE NOT RECOGNIZED IN THE DECISION UNDER APPEAL. 1. Case in which the The Regional Court of Appeals held that the provision in the Collective Bargaining Agreement that provides for the classification of certain positions, such as manager, head of production and master, as being ones of trust, including them in the exception of article 62, II, of the CLT, was valid. 2. The full court of the Federal Supreme Court, in a session held on June 2, 2022, considered Topic 1,046 of the general repercussion list and granted the extraordinary appeal (ARE 1121633) to establish the following theory: "Collective bargaining agreements that, when taking into account the negotiated industry suitability, agree on limitations or withdrawals of labor rights are constitutional, regardless of the specified explanation of compensatory advantages, as long as absolutely inalienable rights are respected." Therefore, according to according to the STF's understanding, provisions in collective bargaining agreements which provide for the withdrawal or limitation of rights must be fully complied with and respected, except when, according to the theory of negotiated industry suitability, they infringe on rights that are absolutely inalienable. 3. In this case, the worker's absolutely inalienable right is not at issue. The classification of certain positions as being positions of trust and consequent exclusion from tracking of working hours can be negotiated by the collective bargaining parties, in line with the most recent STF case law. 4. It can be seen that the decision under appeal was handed down in line with the understanding established by the STF in the judgment of the extraordinary appeal (ARE 1121633). In this context, since the bases of the decision raised on appeal have not been ruled out, no repair is merited. Interlocutory appeal not granted, with grounds added.[1] (emphasis added)
Treating collective bargaining as an instrument capable of defining positions of trust gives companies more legal certainty. This procedure guarantees that, in the event of a legal dispute, the company will have the support of article 611-A of the CLT and the STF decision, which recognize the prevalence of what is negotiated over what is legislated. In this manner, one can use these elements to justify positions of trust beyond the characteristics of the position.
Our consulting and collective bargaining team has been successful in advising companies - especially technology companies - on the delimitation of positions that can be classified as a position of trust (including in Y career structures). It has also been successful in negotiating collective bargaining agreements with professional unions to validate these structures.
Our experience indicates that this legal solution is still little explored. Companies can move in this direction and start using collective bargaining to increase the legal certainty of their structure for positions of trust. With this, they will be able to reduce labor liabilities resulting from overtime.
[1] TST: 00000397620225090122. Reporting Judge: Douglas Alencar Rodrigues, 5th Panel. Publication date: August 23, 2024
