By Thais Carvalho and Israel Cruz

Although the topic in question already has legal provisions under §2 of article 193, included by the legislator in 1977, there has always been a certain legal instability and conflicting decisions on the matter.

On 09/26/2019, the Specialized Subsection I for Individual Disputes (SDI-1) of the Superior Labor Court (TST), in a repetitive appeal, decided by majority that it is not possible for the employee to receive an additional payment for unhealthiness and dangerousness, even if they arise from distinct and autonomous generating facts.

The minister's vote prevailed in the trial Alberto Bresciani, whose understanding was that art. 193 of the CLT was received by the Federal Constitution of 1988 and that, therefore, there is no controversy about the prohibition of cumulation of hazardous and unhealthy work allowances, and the employee must choose to receive the allowance that best suits him/her.

Thus, the thesis that the device in question would go against the provisions of items XXII and XXIII of article 7 of the Federal Constitution, or Convention No. 155 of the International Labor Organization (ILO), relating to the safety and health of workers, was overcome.

The decision on the subject is extremely relevant, since, although there is an express provision in paragraph 2 of article 193 of the CLT, that the employee who is entitled to receive a hazardous work allowance may “opt” to receive the unhealthiness allowance that may be due to him, there were still controversial and conflicting decisions among the Courts on the subject.

The peaceful position of the case law in question, having been handed down in the context of a repetitive appeal, should be followed by the other Courts, standardizing the understanding on the subject at a national level and, thus, guaranteeing greater stability and legal certainty.