By Leticia Cordeiro, Israel Cruz, Paola Carvalho and Najla Mitre

In a recent ruling by the 1st Panel of the Superior Labor Court, published on 11/9/2018, the simple handling of cement in the activities carried out by the Claimant as a bricklayer was considered to be no unhealthy activity, contrary to the expert report contained in the records, based on Summary 448, I, of the TST.

This is because, in a decision handed down by the Rapporteur Minister Walmir Oliveira da Costa, he considered that the non-provision of the activity “handling” in the list of NR-15, appendix 13, prevents the Defendant from being sentenced to pay an additional amount for unhealthiness. Let us see:

“…in the sense that the activities carried out by construction workers, related to handling of cement and lime, are not classified as unhealthy in NR 15 of Ordinance No. 3,214/78 of the Ministry of Labor, which addresses the manufacture and transportation of cement and lime in a phase of great exposure to mineral dust.”[1]

Thus, through this precedent, it can be concluded that the simple fact of carrying out activities such as loading, handling, mixing, construction and other activities that are not related to the manufacture or transportation of cement and/or lime, in itself does not give rise to the payment of the aforementioned additional amount, since they are not expressly included in the list prepared by the Ministry of Labor and Employment through Regulatory Standard number 15, which establishes in its 14 annexes activities and agents capable of characterizing unhealthiness in labor relations.

It should also be noted that this list is exhaustive and does not allow for expansion or interpretation, as can be seen in articles 60 and 190, both of the CLT.

Thus, the precedent shows us the position of the Superior Labor Court in the sense of valuing the exhaustiveness of the list, using it as a limiter for the recognition of unhealthiness, even allowing the applicability of this understanding to other unhealthy agents.

[1] Judgment handed down in the trial of an Appeal for Review, case No. TST-RR-20004-86.2015.5.04.0522, Rapporteur: Minister Walmir Oliveira Da Costa, trial on 10/30/2018, Judgment published on 11/09/2018; Document available at the electronic address http://www.tst.jus.br/validador under code 1001DEC76E6E9AB7EB