The validity of a collective bargaining agreement that establishes an offsetting arrangement for work in a hazardous activity, even without prior inspection by the competent body, is a well-known debate in the industry. It's no wonder, since the judgments involving this issue usually reach astronomical amounts.

The question is whether the working hours offsetting arrangement set out in a collective bargaining agreement can be maintained even when the employee is subjected to hazardous work. The problem lies in the wording of article 60 of the Consolidated Labor Laws, which establishes the need for prior permission from the competent authorities in matters of occupational hygiene, in order for the provision of regular overtime in hazardous activities to be considered valid.

In practice, a kind of very profitable combo was formed. When hazardous working conditions were established in court proceedings, the courts also invalidated collective bargaining agreements that provided for offsetting of working hours. As a result, every hour that exceeded regular working hours, which would be offset through the agreement, was paid as overtime.

The scenario, however, changed with the judgment of Topic 1.046 of the Federal Supreme Court (STF). In its decision, the STF recognized that, in certain matters, the collective bargaining standard will control over the law.

As a result, the Superior Labor Court (TST) recognized, on June 17, in case TST-AIRR-1000844-38.2022.5.02.0241, the validity of a collective bargaining agreement that establishes an offsetting system in a hazardous activity, even without the authorization of the competent body.

The appeal debated a judgment to pay overtime resulting from nullity of the working hours offsetting arrangement and application of the STF's binding understanding in relation to Topic 1.046 of the General Repercussion Table.

Although the ordinary courts had ordered the company to pay overtime due to the invalidity of the offsetting arrangement established by a collective bargaining agreement, the TST's decision prevailed. The Superior Labor Court recognized application of STF Topic 1.046 and opted to maintain the effectiveness of the collective bargaining agreement, absolving the company of the related claims.

The debate on the issue is still raging in the circuit courts, but the TST maintains a firm position in enforcing the collective bargaining standard. With this, it is hoped that, through judicial discipline, the lower courts will rule in this way as soon as possible.

Two major lessons can be learned from the controversy. The first relates to the need to invest in collective bargaining and bring the particularities of the industry into the agreement. The second is that one needs good legal advice to defend the validity of the negotiation in court.