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The legal issue discussed is identical and repetitive, and the case can serve as a paradigm for defining a thesis of general repercussion, to be applied by all instances.

From the Editor

 

The vice-president of the TST, minister Aloysio Corrêa da Veiga, ordered the sending to the STF of an appeal in which the condemnation of the payment of overtime is discussed when, despite the provision in the collective norm of working hours above six hours, there is the usual provision of overtime when the aforementioned limit is exceeded, including on Saturdays.

 

The extraordinary appeal was admitted as representative of the controversy, that is, the legal issue discussed is identical and repetitive, and the case can serve as a paradigm for defining a thesis of general repercussion, to be applied by all instances.

 

Fiat

 

The selected process involves FCA Fiat Chrysler  Brasil Ltda. and a process operator from the MG factory. In the labor complaint, he said he worked uninterrupted shifts, with shifts from 6 am to 3:48 pm and from 3:48 pm to 1:09 am, from Monday to Friday. But he also regularly worked overtime and worked on Saturdays, exceeding the 44-hour week.

 

Non-compliance with collective norms

 

With the overtime request granted by the previous instances, the FCA appealed to the TST, but its appeal was rejected by the 1st panel. For the collegiate, the case did not concern the invalidation of the collective norm, but its non-compliance and such a circumstance would rule out the thesis established by the STF on the constitutionality of collective agreements and conventions that limit or remove labor rights, as long as absolutely unavailable rights are respected. .

 

This is, according to the 1st class, an interpretation of the norm itself, which cannot be understood as a non-validation of the collective norm, but rather its mischaracterization of habitual work with overtime on Saturdays, which would rule out the incidence of Topic 1,046 of the STF's general repercussion table.

 

TST refers action to STF that analyzes uninterrupted relay shifts. (Image: Alan Marques / 

Extraordinary resource

 

Against this decision, the company then filed an extraordinary appeal, aiming to take the discussion to the STF.

 

The extraordinary appeal is exceptional in nature, and its objective is not to review the justice of judicial decisions, but to ensure compliance with the Constitution and establish its final interpretation. It is the last possible resort in a labor process, in which the STF has the final say.

 

In the work process, the extraordinary appeal is always filed with the TST, and it is up to the Vice-Presidency to examine whether it meets the admission requirements, that is, whether it can be sent to the STF.

 

Negotiated vs. legislated

 

In the extraordinary appeal, the FCA maintained that, contrary to the understanding of the 1st class, the matter falls within the STF's thesis of general repercussion, as it involves the discussion of what is collectively negotiated in relation to what is legislated. For the company, in the case of working hours stipulated in negotiation by the category's own union, there is no harm to workers.

 

Invalidity x non-compliance

 

When analyzing the admissibility of the appeal, Minister Aloysio Corrêa da Veiga observed that the STF's jurisprudence has already been expressed in the sense that the subject under discussion does not contradict Theme 1,046 of the General Repercussion Table, since it is not invalid. collective norm, but its mischaracterization when the object of the collective clause is not complied with.

 

On the other hand, the STF has already stated that the issue comes up against summary 279 of that Court, according to which there is no extraordinary appeal for a simple re-examination of evidence, and summary 454, which rules out the examination of extraordinary appeals aimed at simple interpretation of contractual clauses.

 

The minister highlighted that the vice-presidency, in examining the admissibility of extraordinary appeals that deal with the issue, has followed this jurisprudence. However, the STF has ordered the return of several processes, framing the discussion in Topic 1,046.

 

Multiplicity of resources

 

Another aspect noted by the vice-president is that, in 2023 alone, more than 400 extraordinary resources dealing with the matter were analyzed. The STF, in turn, in a letter sent to the TST in November last year, reiterated its request that, in the case of multiple extraordinary appeals based on the same question of law, two appeals be admitted as representing a controversy, even if they reflect factual  discussions.

 

Process: 12111-64.2016.5.03.0028

 

Source: crumbs website