The Second Panel of the Brazilian Supreme Court (STF) recently reaffirmed the unconstitutionality of using the minimum wage as a reference for calculating the hazard pay supplement when another parameter already exists, defined by internal regulations or a prior agreement.
The case involved an employee of the Brazilian Hospital Services Company (EBSERH), whose supplement had been calculated based on his base salary since his hiring. Subsequently, the company issued a new resolution altering the criterion and adopting the minimum wage as the basis for calculation, which led to the filing of a labor lawsuit.
After favorable decisions in the lower courts, the Superior Labor Court (TST) overturned the previous understanding, applying Binding Precedent No. 4 of the STF. The labor court considered that the minimum wage could not serve as an index, but also understood that it was not up to the Judiciary to establish a new criterion to replace it.
Upon examining the constitutional complaint, the Supreme Federal Court (STF) concluded that the Superior Labor Court (TST) exceeded the limits of the precedent, as it ended up imposing, by judicial decision, a calculation basis different from that originally foreseen. The vote of Minister Dias Toffoli prevailed, according to which, given the prohibition on the use of the minimum wage, the previous criterion adopted by the administration or by the rule in force at the time of hiring must be maintained.
Accompanied by Ministers Gilmar Mendes and André Mendonça, Toffoli emphasized that judicial action cannot replace the role of the legislator nor unilaterally modify valid normative acts, thus highlighting the importance of the labor reform, which significantly increased the weight of collective bargaining over the law, allowing union agreements to, in various cases, regulate working conditions in a way that is more aligned with sectoral economic realities.
With the decision, the original parameter for calculating the additional payment was reinstated, guaranteeing legal certainty for the employees and preserving the consistency in the application of Binding Precedent No. 4.
Link to the case in the STF (Rcl 53157):
https://portal.stf.jus.br/processos/detalhe.asp?incidente=6395347
Pedro Oliveira Moura Santos | pedro.santos@nascimentomourao.adv.br
Lawyer in the area of Strategic Litigation, specializing in Labor Law and Procedure.
Matheus Selaibe de Souza | matheus.souza@nascimentomourao.adv.br
Partner Lawyer in the area of Strategic Litigation.
