By Rafael Mello and Fabiana Aparecida da Silva

In a recent decision, the 6th panel of the TST, by unanimous vote when judging the appeal in the appeal for review in case no. RR-389-45.2018.5.21.0001, granted overtime during the period in which the daily and weekly limit of the domestic employee's working hours was exceeded, for two caregivers who are seeking payment for overtime in court.

The Plaintiffs' claim was dismissed by the first instance court and by the 21st Regional Labor Court. The reasoning of the judge who handed down the ruling in the case was that the caregivers did not work for 24 consecutive hours and slept at the workplace. The assumed regime in the case was 12×36, where they would work 12 hours and would have the rest of the time off to rest, take time off, etc.

The TRT of the 21st region understood that it was up to the caregivers to prove the alleged overtime, but no testimonial evidence was produced by them in the case. In conclusion, the understanding was expressed in the judgment handed down by the judges that the claimants “preferred to venture into the labor lawsuit without proving anything”.

Then, at the TST, when reviewing the case, the rapporteur, Minister José Pedro de Camargo, highlighted that imposing on caregivers the obligation to prove overtime would be a true “diabolical test”. He emphasized in his decision that domestic work is often carried out without the presence of other employees or third parties, in addition to family members, which makes it very difficult to produce proof of overtime.

The minister also noted that the law itself places on the employer the burden of signing a written agreement proving the adoption of the 12×36 regime or keeping records of working hours, which was not demonstrated by the employer in the specific case. He observed the majority understanding of the Superior Court, which was duly summarized in summary nº 338, I, of the TST.

The judge agreed in his decision with the understanding of the TRT of the 21st region when recognizing that the caregivers worked under the 12×36 regime, that they were at the employer's disposal and spent the night at the workplace. However, he highlighted that there was no mention of any document presented by the employer confirming the adoption of this regime or the control of the working hours.

Complementary Law No. 150 of 2015, which regulated Constitutional Amendment No. 72, provided for new rights for domestic employees, including the regulation and establishment of working hours for the category. The rule set forth in Article 2 of the law provides for a 44-hour workweek, which is considered a full-time workweek. There is also the possibility of a part-time workweek when it does not exceed 25 hours per week.

Article 10 of the law also provides for the possibility of a 12-hour workday followed by 36 hours of uninterrupted rest, with the formalization of a written agreement between the employee and the employer. The law also provides for the obligation for the employee to record the working hours by any means, as long as they are suitable.

The detailed reasoning in the ruling issued by the rapporteur in the case provided a clear view of his reasoning, considering Complementary Law No. 150 of 2015 and the majority understanding of the TST regarding the production of evidence of the working hours. The highlight of the decision issued is the possibility of varying working hours for domestic employees, as long as an agreement is signed between the employee and the employer in order to validate the working hours to be worked, and it is also important to properly record the hours worked.