By: Rafael Mello and Israel Cruz

The Superior Labor Court (TST) reviewed case law guideline 394 (OJ 394) which has been in force for at least 13 years.

According to the decision and review of OJ 394 of the TST, the remuneration for weekly rest, including overtime, must have repercussions on vacations, thirteenth salary, advance notice and FGTS.

The change in interpretation will increase payroll charges for companies and is valid, according to the leading vote of Rapporteur Minister Amaury Rodrigues Pinto Junior and modulation of effects, from 03/20/2023. That is, companies will have to adjust calculations from this date.

In practice, the TST Plenary decided that the remuneration for weekly rest, including in the calculation the overtime worked by the employee, must be reflected in other installments – such as vacations, 13th salary, advance notice and FGTS.

Previously, the same OJ 394 of the TST had text reflecting the understanding that these values should not be computed in the calculation of other labor benefits, as it would generate duplicate payment to the employee.

That is, there was a complete reversal of the previous understanding. Let us look at the updated text of OJ 394 of the TST:

1. The increase in the value of the weekly paid rest resulting from the integration of regular overtime must be reflected in the calculation made by the employer of the other installments that have the salary as a calculation basis, without considering bis in idem due to its incidence in the calculation of vacations, Christmas bonus, advance notice and FGTS.

2. The new guidance will be applied to overtime hours worked from 03/20/2023.

It is worth noting that the decision was made in a repetitive appeal incident and, therefore, will generate new guidance from the TST that must be observed by the entire Labor Court in a binding manner.

Companies must immediately adjust their payroll processes and take the opportunity to review them, especially given the express determination to apply the new system as of 03/20/2023.

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