By Najla Mitre and Leticia Neves

On March 25 of this year, the Superior Labor Court – TST decided in a judgment of a repetitive appeal incident that the eventual suppression of up to five minutes in the break for rest and food does not authorize the employee to receive a full hour as overtime.

It is worth noting that the decision in question uses the situation provided for in article 58, §1º of the CLT in an analogous way, in which minimum variations in working hours are disregarded.

According to the wording prior to the Labor Reform (Law 13,467/17) in §4 of article 71 of the CLT, there was a determination that the suppression of the intra-day break would be remunerated with an increase of at least 50% on the value of the regular hour worked.

In addition, Summary 437 of the TST determined that this payment should be made in both cases of partial suppression and in cases of total suppression of the interval.

However, there was much discussion about minimum time variations, such as two or three minutes, as judges and courts had taken a position in many cases regarding the intolerance of any variation, which is why many appeals reached the TST on this matter.

With the advent of Law 13,467/17, the aforementioned §4 of article 71 was reformed so that only the suppressed period would be paid, without any tolerance being established again.

Therefore, the aforementioned decision is important, as it is applicable not only to contracts prior to the Labor Reform, but also to current contracts.

Another highlight is that the decision handed down in the Repetitive Appeal Incident provides legal certainty as appeals seeking to reform decisions in this regard may be refuted outright by the Rapporteur of the case.

That said, we understand that divergent decisions must be taken to the TST with a high chance of success in their appeal.