Fonte: News Bulletin 24/7 | Publicado em 10/8/2022 | Clique aqui e veja a publicação original
The STF (Supreme Federal Court) overturned a summary of the TST (Superior Labor Court), which provided that the payment of vacation pay in double, including the constitutional third, whenever the employer did not pay the amounts within two days before the worker rest.
By declaring the text unconstitutional, the Supreme Court invalidated all non-appealable decisions (with no possibility of appeal) that applied the understanding. The summary was based on article 137 of the CLT (Consolidation of Labor Laws), which provides for double payment when vacation is not granted within the 12-month period. The TST expanded this understanding to also include situations of late payment.
For most STF ministers, it is not up to the TST to change the scope of a norm to reach situations that were not provided for in the legislative text, especially when the norm generates a punishment and, therefore, should have a restrictive interpretation.
The rapporteur, Minister Alexandre de Moraes, highlighted in his vote that, although independent, the powers must act harmoniously, moving away from the practices of “institutional guerrillas”, it is not up to the Judiciary to be the sanctioning power.
For Henrique de Almeida Carvalho, labor partner at GBA Advogados, as the summary is not a law, but a guideline, in practice companies no longer made this payment voluntarily in case of delay. However, in recent decades, the issue was recurrent in labor lawsuits. “As it was a directive from the top, from the TST, it generated a cascading effect. The courts and the first instance generally followed. In practice, the vast majority accepted this summary”, he explains.
The lawyer points out, however, that in recent years flexibility has begun. “The courts began to accept that the delay happened until the first day of the beginning of the vacation. The fine was only being applied if the payment was not made after the first day of rest”, he says.
Lawyer Cláudio de Castro, a partner in the Labor department at Martinelli Advogados, says that there has always been an important number of lawsuits on the subject. “And the imposition of the fine has always been related to whether the payment delay was small or large. The judges applied more on longer delays.”
For Castro, the new decision is another example of the arm wrestling between the TST and the STF. “The Supreme Court has overturned labor guidelines and the most striking example was the summary of outsourcing 331, which talked about core activity and middle activity. The TST created a rule, as if it were the legislative power. The STF has already said that it is not constitutional and it is still under discussion”, he explains. In Castro’s view, this new decision will also create legal uncertainty.