Source: Tribunal Superior do Trabalho-TST
The Superior Labor Court (TST), in the year 2012, reviewed the jurisprudence in cases where the worker is at the employer’s disposal by means of mobile phone.
As soon as went into effect the new law, the need to review the case law was announced by the President of the Court, Minister João Oreste Dalal (pictured), in January. As pointed out, it would be “unremovable” revision of the Scoresheet 428 of the TST, whose former text did not recognize the use of communication devices (cell phone, beeper or pager) as sufficient to characterize the risks.
“The law 12,551 directly affects cases where the employee, after finished the journey, is available to suit a new service for the company. The scoresheet 428 did not consider this waiting time as length of service, but the law counts as such. With this, the scoresheet became incompatible and will have to be reviewed by Ministers “, argued at the time.
The new wording of the Summary was presented in September, in the dissemination of the results of the 2nd Week of the TST, in which were revised some positions of the Court. The current text went on to consider that lies under forewarned the employee who, under the employer’s control through devices like mobile phone, remains on duty pending at any time called for service during the rest period.
In this way, once characterized the forewarned, the worker is entitled to remuneration of one third of the hourly rate multiplied by the number of hours that remained available. If it is triggered, receives overtime for the time actually worked.
However, the device leaves expressed that only the use of such technological instruments of communication provided by the employer does not guarantee the employee receive overtime or the submission is forewarned.
Previous decisions
Decisions handed down in trials in TST, prior to changes on the scoresheet 428, already pointed to recognize the regime warned. In August, the first group maintained its decision to recognize the right to receiving hours forewarned to a back room that was available to the company through mobile phone.
The employee claimed in grievance, which was forced to bear and meet the cell phone “continuously”, every day of the week, including Saturdays, Sundays and public holidays. Your request estimated the average daily overtime five forewarned, including weekends.
At trial, the rapporteur, Minister Lélio Bentes Correa, drew attention to two details: the company’s admission that the head of the warehouse was with the phone turned on every night being fired several times a week; and the absence of the book of records. “Besides getting ready, he had to appear with frequency to the company, and could not pull away from home about to derail the attendance,” he noted. “It’s more than the scale on duty, because neither had relay: it was always him.”
In may, the subsection (I) Specialized in collective (SDI-1) already had been expressed in favour of providing hours of overtime on trial and warned of similar matters, but in this case, the employee was fired through bip.
It was appeal of Banco Bradesco S.A. has not known of SDI-1, so that was held the eighth class of TST decision that determined the payment of hours warned the banking sector carrying beep to meet emergencies.
After editing the new text of the docket, several cases were decided based on the new understanding of the TST.
Image courtesy of NathanReed