The Guarulhos Airline Workers' Union filed a class action lawsuit against the airline Aerolineas Argentinas SA, represented by Montgomery & Associados, requesting that the company be ordered to pay hazard pay and unhealthy conditions to employees holding the positions of "Supervisor," "Junior Airport Assistant," and "Junior Administrative Assistant," both those currently employed and those dismissed in the last two years, alleging that these specific workers worked on the aircraft runway and, for this reason, were exposed to dangerous situations due to their proximity to flammable material – aircraft fuel – as well as to unhealthy agents such as noise, vibration, and heat.
The technical report prepared by a court expert ruled out the existence of unhealthiness, finding that the company adequately provided ear protectors to reduce exposure to noise, and also found no exposure to vibration, heat, humidity or ionizing radiation.
Regarding the dangerousness, however, the judicial expert found that the occupants of the positions of “Supervisor” and “Junior Airport Assistant” were exposed to flammable material and remained in an area with a condition of accentuated risk inherent to the exercise of their functions, concluding that the activities were dangerous, but ruling out the dangerousness of the functions of the position “Junior Administrative Assistant.”
The lower court ruling accepted the expert's findings and ordered Aerolineas Argentinas SA to pay a 1% hazard pay premium to employees holding the positions of “Supervisor” and “Junior Airport Assistant” whose employment contracts were active, as well as to include this amount in their payroll.
Aerolineas Argentinas SA appealed to the TRT of the 2nd Region, alleging, in short, that such circumstance could not be treated as protection of collective, diffuse or even homogeneous individual rights, but only as an individual right, that is, each employee should have their situation investigated separately, otherwise it would not be possible to determine any situation of dangerousness, much less by the mere name of the position.
The 16th Panel of the São Paulo Regional Labor Court (TRT), by majority vote, accepted the appeal of Aerolineas Argentinas SA and dismissed the award of additional hazard pay, understanding the need for an individual analysis of the functions of each worker, also considering the lack of an organized career framework:
In this case, the plaintiff union files a lawsuit seeking payment of hazard pay to all of the defendant's employees, regardless of whether they hold the positions of junior airport assistant, junior administrative assistant, or supervisor. It is established that hazard pay is due (Article 193 of the Consolidation of Labor Laws) if and while the employee is exposed to hazards, according to the numerus clausus of a specific law, an individual analysis of the duties performed is mandatory. The function, not the position, is given priority. Furthermore, the defendant does not even have an organized career framework to pre-establish the range of duties applicable to each employee in the aforementioned positions. This presupposes a delay in the presentation of evidence, and in the present case, there is no mention of the protection of homogeneous collective rights.
Thus, the TRT reformed the first instance ruling and dismissed the action, ordering the Guarulhos Airline Workers' Union to pay the legal costs and fees of the court expert.
