In a recent judgment by the 1st Panel of the do Superior Labor Court, published on November 9, 2018, it was concluded for the inexistence of unhealthy activity in the mere handling of cement in the activities performed by Plaintiff as a mason, contrary to the expert report contained in the records, based on Precedent No. 448, I, of the TST.
That is so because, in a decision rendered by Reporting Justice Walmir Oliveira da Costa, it was considered that the non-provision of the activity “handling” in the list of NR-15, exhibit 13, prevents the sentencing of Respondent to pay the hazard pay:
“…in the sense that the activities performed by the workers of civil construction, related to the handling of cement and lime, are not classified as unhealthy by NR 15 of Ordinance No. 3.214/78 of the Ministry of Labor, in the manufacturing and transport of cement and lime, in phase of great exposure to mineral powder.”[1]
Hence, through this precedent, it can be concluded that the mere fact of performing activities like carrying, handling, mixing, construction and activities other than the manufacturing or transport of cement and/or lime, per se, do not give rise to the payment of the mentioned additional pay, as they are not expressly provided for in the list prepared by the Ministry of Labor and employment through Regulatory Rule No. 15, which establishes, in its 14 exhibits, activities and agents capable of characterizing unhealthiness in employment relationships.
It should also be pointed out that the mentioned list is restrictive, not allowing for expansions and interpretations, as verified in articles 60 and 190, both of the Consolidated Labor Law (CLT).
Hence,
the precedent shows us the position of the Superior Labor Court in the sense of
valuing the restrictiveness of the list, using it to limit the acknowledgment
of unhealthiness, and also enabling the applicability of this understanding to
other unhealthy agents.
[1] Appellate decision rendered in the judgment of Bill of Review, case No. TST-RR-20004-86.2015.5.04.0522, Reporting Justice Walmir Oliveira Da Costa, judged on October 30, 2018, Decision published on November 9, 2018; Document available at: http://www.tst.jus.br/validador under code 1001DEC76E6E9AB7EB
By Letícia Cordeiro, Israel Cruz, Paola Carvalho e Najla Mitre