TST Maintains Understanding Regarding Deduction of Pay for Days Missed During Long-Term Strikes

In a decision released this week, the Specialized Section for Collective Labor Disputes authorized companies to deduct half of the 36 days of a strike in the interior of São Paulo. The other half must be compensated by the workers through a time bank, within a period of up to one year.

The Specialized Section for Collective Labor Disputes (SDC) of the Superior Labor Court reaffirmed its jurisprudence on the financial effects of prolonged strikes. In judging an appeal from two companies in the electronics sector in Indaiatuba (SP), the panel authorized the deduction of half of the 36 days of work stoppage and determined that the other half be compensated by the employees. The case was reported by Minister Alexandre Agra Belmonte (case 0017694-03.2024.5.15.0000).

The case

The strike lasted from July 30th to September 4th, 2024, and was triggered by a deadlock in negotiations regarding profit-sharing and results-based bonuses (PLR) for that year. After the strike ended, the companies claimed they lacked the financial resources to fully compensate for the days not worked and proposed that all hours be made up by the employees. The union rejected the proposal, arguing that the majority of strikers were women with family responsibilities, for whom the increased working hours and Saturday work would be too burdensome on their routines.

The Regional Labor Court of the 15th Region (Campinas) considered the strike legitimate and not abusive. Based on this, it ordered the full payment for the days on strike and allowed compensation for only half of the hours. The companies appealed to the Superior Labor Court (TST), arguing that the Strike Law (Law No. 7,783/1989) provides for the suspension of the employment contract during the strike. Therefore, without service rendered, there would be no salary to pay.

The general rule: a strike suspends the contract.

When analyzing the appeal, the rapporteur recalled that participation in a strike temporarily suspends the employment contract, according to article 7 of Law No. 7,783/1989. In practice, this means that the employee does not work and the company, as a rule, is not obliged to pay for the days off, even if the movement is considered legitimate.

Payment for days of work stoppage is only due in exceptional situations related to the employer's own conduct. This is the case, for example, of strikes motivated by repeated delays in salary payments, dangerous working conditions, or collective dismissals carried out without negotiation with the union. As none of these hypotheses were identified in the case, the minister concluded that the general rule of deduction should prevail.

The central point of the decision lies in the duration of the strike. For long stoppages, such as the 36-day one analyzed in this case, the jurisprudence of the SDC (Specialized Section for Collective Disputes) allows for an intermediate solution: the company deducts half of the days on strike, and the workers compensate for the other half. The logic is to prevent the full deduction of more than a month's salary from compromising the employees' livelihood, without transferring the total cost of a period in which there was no work to the employer.

It is worth noting that there is no fixed legal framework to define what constitutes a long-term strike. The analysis is done on a case-by-case basis, but the solution has been applied by the TST (Superior Labor Court) to work stoppages that extend for several weeks.

The TST (Superior Labor Court) also rejected the compensation model proposed by the companies, which would allow workweeks of up to 56 hours. The rapporteur considered the workload excessive, especially since one of the demands of the strike was precisely the reduction of working hours, and because a large part of the strikers combined work and family care.

Compensation must be made through a time bank system, within a period of up to one year. Companies will have to present a calendar with options for working on Saturdays and weekdays; each employee can choose in advance when they will make up the time, and the daily work schedule will be limited to ten hours.

What does the decision signal for companies?

For employers, the ruling brings predictability to the management of strike movements. The rule remains the deduction of days on strike pay, and a compromise solution tends to be the outcome in prolonged strikes taken to court. Even so, the preferred path continues to be negotiation: Article 7 of the Strike Law itself refers the treatment of days on strike to an agreement between the parties or a decision by the Labor Court, and a good settlement agreement avoids years of litigation.

The decision also shows that the design of the compensation scheme matters. Proposals with excessive working hours or without employee participation in choosing the dates tend to be rejected. Finally, the employer's conduct is crucial to preserving the right to the discount: timely payment of wages, a safe work environment, and prior negotiation in collective dismissals eliminate the exceptional circumstances in which full payment for strike days becomes due.