In April 2018, part of Precedent n. 228 issued by the Superior Labour Court (“TST”), establishing the calculation basis for unhealthy work risk premium, was canceled by Justice Lewandowski of the Federal Supreme Court (“STF”).
It is important to recall that, at the beginning of 2008, the STF issued Binding Precedent nr. 4, determining that the minimum wage should not be used in the basis for calculating any benefit (either for civil servants or employees), neither should be replaced by any judicial decision.
The TST, following the issuance by the STF of Binding Precedent nr. 4, in turn, amended the wording of Precedent nr. 228, the wording of which then became:
“228. UNHEALTHY WORK RISK PREMIUM. BASIS FOR CALCULATION. As from 9th May 2008, the date on which Binding Precedent nr. 4 of the Federal Supreme Court was published, the unhealthy work risk premium will be calculated over base salary, save if a more favorable criteria is provided by collective bargaining agreement.”
It is important to emphasize that the part of Precedent nr. 228 permitting the application of base salary as the basis for calculating unhealthy work risk premium, had already been suspended in July 2008, following an injunction issued by the STF in this regard.
In the light of the foregoing, following the understanding of the then President of the STF, Gilmar Mendes (Rcl 6,266/DF), the suspension of part of Precedent nr. 228 would be sustainable, given that the wording of Binding Precedent nr. 4 had been improperly applied by the TST.
“(…) according to what was decided in RE 565,174/SP and established by Binding Precedent nr. 4, this Court considered that is not possible to replace the minimum wage, either as the basis for calculation or as an index, before the issuance of a law or execution of a collective bargaining agreement regulating the unhealthy work risk premium.
Thus, at first sight, the new wording provided by Precedent nr. 228/TST reveals the improper application of Binding Precedent nr. 4, since it authorizes the replacement of the minimum wage by the base salary when calculating the unhealthy work risk premium without normative support.”
In fact, in contrast to the understanding of the TST as far as the wording of Precedent nr. 228 is concerned, what was indeed established by Binding Precedent nr. 4, was that the Judiciary could not provide for a calculation basis that was not determined by law or collective bargaining agreements, under penalty of acting as legislative authority. Therefore, the calculation basis would remain the minimum wage.
In April of this year, Justice Lewandowski, in his decision delivered in RCL 6275, canceled the part (suspended until then) of Precedent n. 228/TST.
Reiterating STF’s prior understanding, the Justice reminded that until the declaration of unconstitutionality of Article 192 of the Consolidation of Labour Laws (“CLT”) is superseded, the Judiciary cannot establish a new basis for calculating the unhealthy work risk premium.
Therefore, the Justice concluded to cancel the part of Precedent nr. 228/TST, that provided for the base salary as the basis for calculating the unhealthy work risk premium and therefore determining that the correct basis would still be the minimum wage, as provided by the Article 192 CLT.
Such decision directly affects the payroll of all companies paying unhealthy work risk premium to their employees.
Montgomery & Associados, remain at your disposal for any additional clarification in relation to the topic at hand.