In recent discussions with clients regarding sending the additional information related to the Salary Transparency Report on the Emprega Brasil Portal, one of the most recurrent doubts was whether the company had a jobs and salaries plan.
After all, what is a jobs and salaries plan? According to the Brazilian Labor Law (CLT), a job and salary plan corresponds to a policy that establishes rules on employee promotions based on "merit and seniority, or only one of these criteria, within each professional category."
Any structure of positions and salaries – such as guidelines – that does not exclusively observe the legal criteria mentioned above does not fit the legal concept of a jobs and salaries plan.
As widely discussed in our previous articles on the Salary Transparency Report, the submission of the additional information related to the Salary Transparency Report on the Emprega Brasil Portal should consider legal concepts, and not administration/people management concepts.
Companies should know that, by expressly stating in the additional information form of the Salary Transparency Report that they have a jobs and salaries plan, they are subject to legal consequences.
The first of these consequences is the impossibility of using the legal requirements of equal pay as a justification for possible salary differences between employees occupying the same position. This is because, by legal determination, the existence of a jobs and salaries plan prevails over the salary equalization rules provided for in article 461 of the CLT that regulates equal pay for equal work.
This is an important consequence, but even more relevant is the second consequence: the jobs and salaries plan can be incorporated into the employment contract, as well as the career plan. By implementing these policies, the company recognizes that both can be incorporated into the employment contract of employees in the way they are established.
Such a contractual incorporation would difficult future changes and, consequently, could hinder the company's organizational structure. This topic has been widely discussed by labor courts over the past few years. Below is just one example:
ORDINARY APPEAL. COMPANHIA CEARENSE DE TRANSPORTES METROPOLITANOS METROFOR. CHANGE IN THE JOBS AND SALARIES PLAN THAT CONSTITUTES A HARMFUL CONTRACTUAL CHANGE. The adoption by the employer of a new Jobs and Salaries Plan is a harmful contractual change, which implies notorious damage to the worker, especially when the latter's adhesion is waived, and its transmutation is done automatically, without consulting his agreement. Under the terms of Precedent No. 51 of the Brazilian Superior Labor Court (TST), regulatory clauses that revoke or change previously granted benefits will only affect workers hired after the revocation or amendment of the regulation (...)[1]
In our view, general people management guidelines on jobs and salaries structure do not legally characterize jobs and salaries plans and/or career plans.
That is why it is essential that, when sending the additional information related to the Salary Transparency Report on the Emprega Brasil Portal, companies evaluate with great caution whether or not they have a jobs and salaries plan.
[1] Regional Labor Court of the 7th Region, 0000711-50.2012.5.07.0006, rapporteur Regina Glaucia Cavalcante Nepomuceno, 1st Panel, publication date: April 4, 2014
