CLT change will reduce usual overtime-related processes
Labor reform can reduce the number of usual overtime-related lawsuits that arrive every day in the judiciary. For experts, the possibility of negotiating bank hours and hiring intermittent work will be decisive.
The changes promoted by Congress in the Consolidation of Labor Laws (CLT) should begin to take effect in November, 120 days after the publication of the law in the Official Gazette. According to the partner of the law firm Có Crivelli Advogados, Antonio Bratefixe, the reform guarantees other work possibilities that would remove the need for the same employee to exceed his work day daily. "It could be suggested the possibility of telejornada, the negotiation of bank of hours with the worker. There are countless instruments," he says.
In his opinion, the lack of flexibility in the day and the obligation to conduct a negotiation with the union to deal with any change in the employment contract, even if it is the exchange of overtime for a system of time off, causes many companies to break the law.
Recently, the Regional Labor Court of the 10th Region (TRT-10) guaranteed the right to receive compensation to a company employee of the Federal District who had suppressed overtime received for more than 12 months. The legal basis of the decision was Summary 291 of the Superior Labor Court (TST).
"The total or partial deletion by the employer of an additional service provided habitually for at least one year guarantees the employee the right to compensation corresponding to the amount of one month of the hours deleted", points out the text of the consolidated case-law.
In this case, the worker spent overtime for 15 years, which is why the court understood that the amounts should be considered an integral part of the salary. "You can't change the value after 15 years according to the principles of wage irreducibility and financial stability," he explains.
According to Oliveira Ramos Advogados' partner, Ana Amélia Mascarenhas Camargos, the situation could have been different if the reform had been in place. "What the reform did was make it possible for the employee to negotiate with an employer for their journey. This was very limited before," he says.
Ana Amélia recalls that by legislation and decisions prior to retirement, an employer who suppressed overtime, in addition to paying compensation, can no longer require the same worker to stretch his journey. "With the new legislation, the employer and employee will be able to negotiate whether the most interesting are overtime or whether it is more worth doing some other work regime."
Capano's partner, Passafaro Advogados Associados, Leonardo Passafaro, believes that companies will choose to use more intermittent work to avoid the use of regular overtime. By the text of the labor reform, the company can hire an employee to work sporadically and pay him only for the period in which he provided his services.
"Overtime pay will decrease with the adoption of intermittent work. Today there is that minimum of 6 to 8 hours and it is easier to control overtime. But an intermittent worker could work two to three hours a day alone," he says.
READ MORE: Understand what intermittent work is
Passafaro considers that the office is positive for the entrepreneur, but negative for the worker, since there may be replacement of labor of an employee who works the eight-hour work by an intermittent.
"The government's view is that there will be a reduction in unemployment and informality, causing more people to pay taxes. But what generates jobs is a heated economy, so the Union's goal must be frustrated," he says.
One way or another, Antonio Bratefixe advocates that employers monitor more closely the amount of overtime performed by their employees, to prevent the extraordinary from becoming customary.
SOURCE: DCI – Daily Commerce Industry & Services