29/11/2024
On November 25, the Superior Labor Court (TST), by a majority, decided that the rules of the Labor Reform apply even to employment contracts signed before its enactment. In the judgment of an Incident of Repetitive Appeals (IRR), a binding thesis was established (Theme 23), which must be observed by the Labor Justice.
In the case analyzed by the TST Plenary, it was determined that workers are entitled to payment for in itinere hours only up to November 10, 2017 (before Law 13.467/2017 came into force).
The dispute involved an employee of JBS S.A., who claimed payment for the hours spent commuting on a company-provided bus between 2013 and 2018. JBS argued that, after the Labor Reform took effect, commuting time was no longer considered as “time at the employer’s disposal.”
The TST’s 3rd Panel had previously ruled that the right to in itinere hours constituted part of the employee’s legal entitlements and could not be eliminated, condemning the company to pay the benefit for the entire contractual period, from December 2013 to January 2018.
JBS appealed to the Specialized Section I on Individual Disputes (SDI-1), which referred the case to the Plenary due to the significance of the matter.
The reporting judge, Minister Aloysio Corrêa da Veiga, emphasized in his vote that the prohibition of retrogression serves as a criterion for constitutional review, while the principle of the most favorable rule is an essential hermeneutic tool for reconciling labor norms.
He argued that the Labor Reform has immediate application to active employment contracts, regulating rights whose generating events occurred after its effective date.
The minister voted to grant JBS’s appeal, limiting the company’s obligation to pay in itinere hours to the period prior to the Labor Reform’s enactment. He further stressed that it is not possible to recognize as vested rights those provisions established in collective agreements, individual agreements, or contracts.
The judge also referenced the Supreme Federal Court’s (STF) decision in Theme 123, which addressed a similar issue regarding the application of new legislation to health plans:
“In these cases, the new law does not affect an actual agreement between the parties but only the mandatory legal framework, which is independent of their will and, therefore, subject to subsequent changes.”
Additionally, he clarified that the principle of salary irreducibility, guaranteed by the Federal Constitution, protects the nominal value of permanent entitlements but not the calculation methods or variable benefits that depend on future events.
The vote of the rapporteur was accompanied by Justices Luiz Philippe Vieira de Mello Filho, Guilherme Caputo Bastos, Alexandre de Souza Agra Belmonte, Douglas Alencar Rodrigues, Breno Medeiros, Alexandre Luiz Ramos, Dezena da Silva, Evandro Pereira Valadão Lopes, Amaury Rodrigues Pinto Junior, Sergio Pinto Martins, Ives Gandra da Silva Martins Filho, and Justices Dora Maria da Costa, Maria Cristina Irigoyen Peduzzi, and Morgana de Almeida Richa.
The Minister Mauricio Godinho Delgado, Vice President of the TST, dissented, arguing that employment contracts signed before the reform should remain governed by the rules in effect at the time of their execution. This view was supported by Ministers Augusto César, José Roberto Pimenta, Hugo Scheuermann, Cláudio Brandão, Alberto Balazeiro, and Justices Kátia Arruda, Delaíde Miranda Arantes, Maria Helena Mallmann, and Liana Chaib.
At the end of the judgment, the following thesis was established:
“Law No. 13,467/17 has immediate application to ongoing employment contracts, governing rights arising from the law, whose triggering events occurred after its entry into force.”
With this decision, the TST promotes legal certainty and provides clear guidelines for applying the changes introduced by the Labor Reform, ensuring a balance between updating the legislation and protecting workers’ rights.
Authored by:Fabiane Sant’Anna
