The applicability and sovereignty of collective bargaining agreements were examined by the Brazilian Supreme Court (STF) under general repercussion, Theme Theme 1.046. In the decision, the constitutionality of collective bargaining agreements that establish restrictions or exclusions of labor/employment rights was recognized, as long as absolutely non-negotiable rights are complied with.
Recent verdicts from the Brazilian Superior Labor Court (TST) have reflected the STF position, with particular attention to rights that would be considered absolutely non-negotiable. The official TST website frequently publishes news related to the matter, including a recent decision involving the collective bargaining agreement (CBA) of the banking category.
In the decision[1], published on April 10, the TST validated the application of the first paragraph of Clause 11 of the CBA of the bank employees category, which establishes the possibility of offsetting the amounts paid as a function bonus with the 7th and 8th overtime hours, in the event of a judicial decision that mischaracterizes the employee's framework as an exception in article 224, §2, of the CLT.
The pronouncement of the Third Panel of the TST was unanimous and emphasized that the applicability of Clause 11 of the CBA is in line with STF Theme 1.046.
Furthermore, it was emphasized that there is no violation of article 7, item VI, of the Federal Constitution, as alleged by the employee in his appeal, as the provision itself establishes an exception to salary non-reducibility in the case of provision in a CBA.
According to the reporting minister, José Roberto Freire Pimenta, it is not a not-negotiable right, as it “does not violate the minimum civilizational standard, linked to human dignity, citizenship, especially from the perspective of its social dimension in the labor field, and the minimum valorization of their work”.
Before Theme 1.046 of general repercussion of the STF, the TST understanding was consolidated in Precedent 109 of the TST[2], which expressly provided for the impossibility of offsetting the mentioned amounts, based on the impossibility of offsetting amounts with different legal nature.
However, the Fifth Panel of the TST[3] also ruled in the same terms as the decision mentioned above. In this case, the reporting minister, Breno Medeiros, pointed out that the issue does not involve workers' waiver of rights. He also said that, although contrary to the TST consolidated understanding in Precedent 109 of TST, the provision for offsetting is not related to absolutely non-negotiable rights and is not an illicit object - justifying the application of Theme 1.046 of general repercussion of the STF.
Therefore, after the decision with general repercussion issued by the STF, it is observed that the judgments of the Labor Court are in opposition to the previously consolidated understanding by the TST itself in Precedent 109. Now, the negotiated prevails over the legislated, as established in Theme 1.046.
The TST precedents express the expectation that negotiated matters will prevail over the legislated matters in the Labor Court. This is extremely relevant for the legal certainty of companies in negotiating CBA, in addition to standardizing case law on the application of Theme 1.046 of general repercussion of the STF.
[1] Process Ag-RR-868-65.2021.5.13.0030. Judgment published on December 7, 2023, and reanalyzed after motion of clarifications, with a new publication on April 10, 2024.
[2] Precedent 109 of the TST: "Bank employees not classified under § 2 of article 224 of the CLT, who receive a bonus payment, cannot have the salary related to overtime hours offset with the value of that benefit”.
[3] RR-1000315-49.2020.5.02.0383
