The Brazilian Supreme Court (STF) voted unanimously on April 12 to return the Extraordinary Appeal No. 1,476,596 to the Brazilian Superior Labor Court (TST). The aim is for the appeal to be judged considering the thesis established in Theme 1,046, to be judged by Gilmar Mendes. According to the thesis, it is now provided for the constitutionality of "collective agreements that, when considering negotiated sectoral adequacy, stipulate limitations or waivers of labor/employment rights".

The case that originated the Extraordinary Appeal refers to a labor claim filed against an automotive company by an employee holding a position of process operator. The employee alleges having worked in uninterrupted shift rotations, with shifts extending from 6 am to 3:48 pm and from 3:48 pm to 1:09 am, from Monday to Friday. He also claims to have usually worked overtime and worked on Saturdays. The workload thus exceeded 44 hours per week, leading the employee to claim overtime payment.

The lower court, when analyzing the lawsuit, understood that the collective agreements that established work in uninterrupted shift rotations in a number greater than the limit of eight hours per day were null and void. For this, the lower court mainly considered the provision established by Precent 38 of the Labor Court of the 3rd Region.

When analyzing it, the Labor Court of the 3rd Region (TRT-3), understood that decision of the lower court should be confirmed, to reaffirm "that, despite the possibility of flexibility, by collective agreement, of the work schedule of employees subject to shift rotations, in the terms of art. 7, section XIV, of the Federal Constitution of 1988, in this case, it would not be possible to recognize the validity of the referred collective agreements, as the worked shifts exceeded the maximum daily limit of 8 hours, including work on Saturdays. In this sense is the understanding of Precedent No. 423 of the TST".

Although the company filed an appeal to the TST, the appeal was not granted by the TST, which understood it to be an interpretation of the norm. According to the TST, the nullity of the collective agreement was not being declared, but rather that it was misclassified by the habitual work with overtime on Saturdays. Therefore, it would not be appropriate to include the case into Theme 1,046.

Against the TST judgment, the company filed an Extraordinary Appeal, stating that the matter discussed is related to the thesis of general repercussion of the STF. According to the company, the case involves the discussion of the collectively negotiated in relation to laws, without being detrimental to the employees, as it is presumed that the labor union agreed to a more favorable and preferable work schedule.

The appeal also highlighted the literal and direct offense to articles 5, XXXVI, 7, XXII, XIV, and XXVI, of the Federal Constitution, due to the interpretation that limits the effects of the conventional clause in force for the professional category of the employee.

The vice-presidency of the TST, responsible for the initial admissibility judgment, admitted the Extraordinary Appeal and referred it to the STF, as representative of the controversy. It considered, therefore, that the legal issue discussed is identical and repetitive and that the case could serve as a paradigm for the definition of a thesis of general repercussion, to be applied by all instances.

The STF, unanimously, understood that the labor court, despite basing the case on the non-compliance with a collective agreement regarding uninterrupted shift rotations, ended up invalidating the collective agreement and excluding the application of Theme 1,046.

This is because, in his vote on Theme 1,046, Gilmar Mendes recorded that, given the case law of both the TST and the STF, it is possible to established, in a collective agreement, even if contrary to the law, aspects related to the work schedule (encompassing, in this regard, uninterrupted shift rotations).

With the recent decision of the STF, Extraordinary Appeal 1,476,596 will return to be ruled by TST, which must consider the thesis established in Theme 1,046.

The precedent is extremely important for companies, especially because the STF has defined that the judgment of Theme 1,046 is broad and that the decision of the TST declared "the nullity of uninterrupted shift rotations established in a collective agreement".

According to the STF, "it was not, therefore, an examination of non-compliance with a clause, but an annulment of the collective negotiation due to the alleged prevalence of the legislated over the negotiation".