The binding ruling validated the 220 divisor established in the collective bargaining agreement, but it originated from the debate on Topic 1,046 of the Supreme Federal Court (STF), and not from the constitutional amendment regarding working hours; companies are exposed to the risk of liabilities related to overtime.
The binding ruling of the Superior Labor Court (TST) recognizing the validity of the 220 divisor established in collective agreements or conventions may not end the discussion for companies migrating to the 5x2 schedule. This is because Topic 316 was built upon the debate surrounding Topic 1,046 of the Supreme Federal Court (STF), and not the constitutional amendment that set the 40-hour weekly limit and ended the 6x1 schedule. The difference could represent a significant liability for overtime.
In practice, those who have already agreed to the 220 divisor in collective bargaining agreements have a solid argument, but not a guarantee. Applying this thesis to the 40-hour work week established by the Constitution is still open to discussion, and the issue should be treated as a matter of risk, not as a closed matter.
What the TST decided
The full bench of the Superior Labor Court (TST) established a binding precedent stating that the divisor of 220, as established in collective agreements or conventions, is valid for employees subject to a 40-hour work week. According to the court, the stipulation of the divisor in a collective agreement does not remove an absolutely inalienable right guaranteed by the Constitution, and the autonomy of collective bargaining should prevail.
Why does the divisor weigh on the sheet?
The divisor is the number by which the monthly remuneration is divided to arrive at the hourly wage, the basis for calculating overtime. Historically, TST (Superior Labor Court) Precedent 431 indicated that a 40-hour work week would require a divisor of 200. With 200, the value of each hour, and consequently the overtime premium, is approximately 10% higher. With 220, the base hourly value is lower, which keeps the costs of any overtime at the same level as the old 44-hour work week.
Many companies and unions had already agreed to the 220 divisor in collective bargaining to enable shorter workdays without disproportionately burdening production. However, regional decisions have been overturning these clauses and ordering the payment of retroactive differences based on the 200 divisor.
A precedent that arose from another debate.
The central point is the origin of Topic 316. The precedent was built from the discussion of Topic 1,046 of the STF (Supreme Federal Court), which dealt with the validity of collective bargaining agreements that limit or eliminate labor rights, except for absolutely non-waivable rights. The thesis therefore arose from the debate on the limits of negotiated agreements over legislation, and not from an examination of the effects of the reduction in working hours promoted by the constitutional amendment.
Thus, the thesis authorizes the collective agreement to set the divisor, but it did not address, at least not explicitly, the argument that the new constitutional rules on working hours alter the parameter for calculating the normal hourly wage. It is in this gap that the discussion focuses.
The arguments from each side
For those who defend the application of the 220 divisor to the 5x2 work schedule, the argument refers to employees subject to a 40-hour work week, without distinguishing whether it stems from a collective agreement or the Constitution. In this interpretation, the divisor is merely a criterion for calculating the hourly wage, which the Constitution does not define, and its establishment by collective agreement would be a matter of discretion, according to the logic of Topic 1.046. It is also argued that, if the monthly remuneration remains the same, there is no salary reduction, even if the hourly wage is less than it would be with the 200 divisor. Finally, since the argument is binding, it must be observed by other bodies of the Labor Courts.
On the other hand, it is possible to argue that Topic 316 does not resolve the hypothesis in which the Constitution itself reduces the workday, which opens the door to arguing that the case is different. There is also the argument that the constitutional reduction of the workday, without a reduction in salary, ensures the worker the corresponding gain in the value of the hour, and that the divisor 220 would nullify this gain in the calculation of overtime and other hourly-based payments. In this interpretation, the matter would no longer be subject to collective bargaining agreements. Summary 431 should continue to be invoked as a parameter, especially when the collective bargaining agreement is silent or ambiguous, and clauses signed before the constitutional amendment can be interpreted restrictively and not cover the 5x2 schedule.
The risk for companies
Until the higher courts explicitly address the issue, the main risk is a ruling ordering the payment of overtime differences based on the divisor of 200, subject to the five-year statute of limitations, during the contract and up to two years after its termination. These differences tend to affect paid weekly rest, vacation pay plus one-third, 13th-month salary, and FGTS (Brazilian severance fund).
A company that unilaterally adopted the divisor 220, or whose collective agreement does not provide for it, is not protected by Topic 316. Furthermore, it is likely that claimants and unions will raise the distinction of the precedent, which tends to generate conflicting decisions in the lower courts until the understanding is standardized.
What to do
Topic 316 offers a consistent basis for supporting the 220 divisor, but it does not eliminate the risk when the 40-hour work week results from the constitutional amendment. The recommended course of action is to review existing collective agreements and conventions to verify if the 220 divisor clause is explicitly stated, if it covers the 40-hour work week and the 5x2 schedule, and what its validity period is. In future negotiations, it is advisable to expressly include the 220 divisor for this schedule, with adjusted compensations and the parties' awareness of the impact on the hourly wage, and to preserve minutes, proposals, and reciprocal concessions to reinforce the argument that there has been no suppression of an inalienable right.
It is also advisable to estimate the impact of the divisor 200 on payroll and overtime, to assess the need for provision, and to monitor the decisions of the TST (Superior Labor Court) and the STF (Supreme Federal Court) regarding the application of Topic 316 to the constitutional 40-hour work week.
