On August 4, 07, the 08th Panel of the Superior Labor Court (TST) dismissed a request by a store assistant to have his intermittent employment contract with a retail chain declared an "indefinite-term contract," with the consequent payment of full salary for the entire period. This is a labor claim. No. 10454-06.2018.5.03.0097.
The employee, in the context of a labor claim, requested that the intermittent hiring be declared null and void. “for violating the employment regime, human dignity, the commitment to professionalization and the minimum level of protection due to people who need to live from their work.”
The claim was dismissed by the 4th Labor Court of Coronel Fabriciano/MG, as it understood that the hiring modality was within the parameters of the law, amended by the Labor Reform in November 2017, to expressly include the intermittent employment contract modality. 1 The Claimant filed an Ordinary Appeal to the 2nd instance, and the judgment was overturned by the Regional Labor Court (TRT) of the 3rd Region (MG), which ordered the retail company to pay the salary differences throughout the contract period based on the hourly rate multiplied by 220, corresponding to the full monthly workload, on the grounds that “the use of an intermittent contract to fill an effective job position within the company is not acceptable.” The TRT of the 3rd Region also pointed out that, after the Labor Reform, the intermittent regime was in fact lawful, but that it should only be applied exceptionally, otherwise it would represent the precariousness of workers' rights.
The defendant retailer filed an Appeal for Review with the Superior Labor Court (TST), and the Rapporteur Justice of the 4th Panel (Justice Ives Gandra Filho) reasoned that, according to the parameters of the law, discontinuous work can be agreed upon for any activity, except for aircrew, as long as the hourly wage of the company's other non-intermittent workers is observed. In its understanding, the TRT created parameters and limitations not contained in the CLT: “Contrasting the regional decision with the aforementioned legal commands, the disrespect for the principle of legality could not be more evident.”
Unanimously, the panel granted the appeal to reinstate the sentence.
Thus, considering the understanding of the country's highest labor court, it is possible to conclude that the intermittent hiring modality, whether for small, medium, or large companies, tends to spread and become more common, given the legal certainty conferred by the recent Superior Labor Court (TST) decision. It is also possible that this decision may indicate the TST's acceptance of some of the significant legislative changes introduced into the legal system by the Labor Reform, as has already occurred, for example, with the exception of time tracking² (and, consequently, the validity of collective bargaining) and the requirement for prior and express authorization from the employee for the deduction of union dues.³.
