It is important to remember that, at the beginning of 2008, the STF published the Binding Precedent No. 4, through which it established the understanding that the minimum wage not could be used as an index for calculating benefits (whether for public servants or employees), nor could it be replaced by a court decision.
The TST, shortly after the publication of the Binding Precedent No. 4 by the STF, in turn, changed the text of the Summary No. 228, which then had the following wording:
"228. UNHEALTHY WORK ADDITIONAL. CALCULATION BASIS. From May 9, 2008, the date of publication of Binding Precedent No. 4 of the Federal Supreme Court, the unhealthiness allowance will be calculated based on the basic salary, unless a more advantageous criterion is established in a collective instrument.”
It is worth noting that the part of Summary nº 228 that allowed the use of the base salary as an indexer for the unhealthiness allowance, its effectiveness had already been suspended since July 2008, by preliminary decision of the STF in this regard.
In this regard, according to the understanding of the then president of the Superior Court, Minister Gilmar Mendes (Rcl 6.266/DF), the suspension of part of Summary nº 228 would be sustainable, since the content of Binding Summary nº 4 would have been applied improperly by the TST:
“(…) based on what was decided in RE 565.714/SP and established in Binding Precedent No. 4, this Court understood that it is not possible to replace the minimum wage, either as a calculation basis or as an index, before the enactment of a law or the signing of a collective agreement that regulates the unhealthiness allowance. Therefore, at first glance, the new wording established for Summary No. 228/TST reveals improper application of Binding Summary No. 4, as it allows the substitution of the minimum wage for the basic wage in the calculation of the unhealthiness allowance without a normative basis.” (gn)
In fact, and contrary to the understanding of the Superior Labor Court (TST) in the drafting of Summary Ruling No. 228, what had been established by Binding Summary Ruling No. 4 was that the Judiciary would not be competent to stipulate a calculation basis not established by law or collective norm, under penalty of acting as a positive legislator. Therefore, the calculation basis to be maintained would continue to be the minimum wage.
In April of this year, Minister Lewandowski, in a decision made in RCL 6275, annulled the part (until then suspended) of Summary nº 228/TST.
Thus reaffirming the STF's previous understanding, the Minister recalled that until the unconstitutionality of article 192 of the Consolidation of Labor Laws (“CLT”) is overcome, the Judiciary could not establish new parameters for the calculation basis of the unhealthiness allowance.
Thus, the Minister concluded by revoking the part of Summary nº 228/TST that set the base salary as an index for the unhealthiness allowance, and for this purpose the minimum wage of the region should be considered, as provided for in article 192 of the CLT.
This decision has a direct impact on the payroll of all companies that pay unhealthy conditions bonuses to their employees.
Montgomery & Associates, is available to clarify any doubts related to the topic in question.
