The Full Court of the Superior Labor Court (TST) has ratified four new themes for consideration under the repetitive appeals process, aiming to establish a legal thesis that will apply uniformly across all analogous cases. This approach was taken after identifying multiple appeals with identical themes, from which a selection was made to represent the broader controversy. The remaining cases were suspended, and a singular decision will be made to resolve the matter. Consequently, the TST will set forth legal theses that will apply to all such suspended repetitive appeals, as well as to any future appeals on the same topics, unless revisions are required due to shifts in economic, social, or legal conditions.

   1. Request for Fee Waiver in Ordinary Appeals

In line with Binding Precedent 218 of the TST, appeals obstructed by non-payment of procedural costs (termed as desertion) are not eligible for reconsideration. The ongoing debate revolves around whether to override this precedent if a worker seeks judicial fee waivers only at the stage of ordinary appeals and if the Labor Court blocks these appeals due to desertion. The ministers will deliberate whether the Regional Labor Courts (TRTs) have the authority to evaluate the merit of requests for judicial fee waivers even under these circumstances.

Should it be determined that both the initial court and the Regional Court have committed procedural errors, the application of this precedent might be circumvented, thereby distinguishing the case. This adjustment would enable the worker’s ordinary appeal to be reviewed, correcting procedural discrepancies.

   2. Requests for FGTS Withdrawals at CEF

The competence of the Labor Court to adjudicate requests for withdrawals from the FGTS filed against Caixa Econômica Federal (CEF – a major government-owned financial institution in Brazil) is currently debated.

The FGTS, or Workers’ Welfare Fund is a fund created by the Brazilian government to protect workers in cases of unjustified dismissal. Employers must deposit a percentage of the employee’s salary into a CEF-managed account every month.

The debate over the Labor Court’s jurisdiction arises from its specialization in resolving disputes between employees and employers, whereas the CEF, managing the FGTS, does not participate in the employment relationship. Thus, some argue that such cases should be adjudicated by the Federal Court.

The outcome will significantly affect the avenues through which workers can pursue their FGTS-related rights.

    3. Impact of Bathroom Breaks on Work Bonuses

The TST will evaluate whether the impact of bathroom breaks on the calculation of bonuses and performance targets constitutes a severe violation of worker dignity. If the TST concludes that such practices inherently constitute moral damage, workers could claim compensation without needing to prove actual harm suffered. Additionally, this ruling will prompt companies to reconsider their productivity policies.

The issue centers on the Variable Incentive Program (PIV), a rewards system that companies use based on productivity or performance goals. Occasionally, necessary breaks, such as for bathroom use, might negatively affect these outcomes, thereby potentially reducing the worker’s compensation.

      4. Hazard Pay for Cleaning Bathrooms

The TST is set to determine the conditions under which cleaning bathrooms in commercial settings qualifies workers for hazard pay. Although Binding Precedent 448 of the TST establishes that contact with urban or unsanitary waste qualifies for additional pay, further clarification is needed in the context of bathroom cleaning.

The Court will explore whether cleaning bathrooms in areas with heavy foot traffic, like shopping centers or airports, poses an increased risk of exposure to biological hazards. It is anticipated that the TST will specify what constitutes ‘heavy traffic’, thereby establishing objective criteria to assess whether the location of the bathroom involves high people flow, which could elevate the work’s risk level.

Glossary:

Superior Labor Court (TST) – Brazil’s highest court dealing with labor law issues, responsible for standardizing labor jurisprudence across the country.

Repetitive appeals process – A procedural mechanism where the TST selects appeals with identical legal questions to establish a single binding decision that will apply to all similar cases, aimed at consistency in legal interpretations.

Legal thesis – A formal statement of legal principles that are decided upon in a judicial decision, which serves as a precedent for future cases.

Binding Precedent – A previous court decision which must be followed by all lower courts in subsequent similar cases, unless overruled by a higher authority.

Desertion (in legal context) – A term used in Brazilian procedural law referring to an appeal that is dismissed due to non-payment of procedural costs, rendering it inadmissible.

Regional Labor Courts (TRTs) – The intermediate appellate courts in the Brazilian labor court system that handle appeals from decisions made by lower labor courts.

Caixa Econômica Federal (CEF) – A major government-owned financial institution in Brazil, which manages the FGTS among other financial and social functions.

FGTS (Fund for Guarantee of Time of Service) – A fund that Brazilian employers are required to pay into on behalf of their employees, intended to provide workers with a financial safety net in the event of unjustified dismissal.

Variable Incentive Program (PIV) – A compensation scheme used by companies to reward employees based on their productivity or performance, which can be affected by mandatory breaks such as bathroom use.

Hazard Pay – Additional compensation provided to workers who perform jobs that involve dangerous or physically uncomfortable conditions.

Binding Precedent 448 of the TST – A specific legal precedent related to the conditions under which certain types of work environments qualify workers for hazard pay.

Heavy foot traffic – Refers to areas where there is a high volume of people moving about, which can increase the risk exposure for certain jobs, like bathroom cleaning in public places.