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11 December 2019
The Labour Code provides for two payments which employees can receive in addition to their base salary:
The hazard allowance can be 10%, 20% or 40% of the applicable minimum wage, depending on the type of hazardous agent and exposure. The risk premium corresponds to 30% of an employee's base salary. The Labour Code also establishes that if an employee is exposed to conditions covered by both the hazard allowance and the risk premium, they should opt for one of them (ie, whichever they believe to be the most beneficial).
Since 2015, Superior Labour Court panels have issued conflicting decisions as to whether employees can receive the hazard allowance and the risk premium simultaneously (instead of opting for one) when exposed to adverse conditions that would warrant both payments.
For example, in 2016 a Superior Labour Court panel ruled that if an employee is exposed to different conditions that would per se entitle them to the hazard allowance and the risk premium, such employee should receive both additional payments simultaneously, based on the understanding that the Constitution generally guarantees employees the right to additional payments when subjected to painful, unhealthy or dangerous activities. The panel also ruled that no law prohibits the receipt of both additional payments simultaneously.
Further, decisions from other Superior Labour Court panels have held that the Labour Code provision that grants employees the right to opt for one of the two additional payments applies only when such payments are based on the same adverse condition. Other decisions ruled that preventing employees from receiving both additional payments simultaneously would be unconstitutional if the employees were exposed to conditions that justified such payments.
On the other hand, in 2016 another Superior Labour Court panel used a different rationale when analysing the issue. The panel ruled that even with different types of exposure, employees could not accumulate the additional payments because the Labour Code requires that they opt for only one of them. This was the prevailing understanding until 2015, when the dissenting views within the Superior Labour Court began to prevail.
Notably, from 2010 to 2014 one-third of the Superior Labour Court justices were replaced, which may explain the shift in the court's decisions in the following years.
Given the differing decisions of the Superior Labour Court panels, a proceeding to standardise the court's understanding was initiated in 2017. This proceeding culminated with a decision on 25 September 2019, in which eight of the 14 Superior Labour Court justices determined that the additional payments cannot be received simultaneously, even if employees are exposed to different adverse conditions.
This recent decision will affect all lawsuits in which plaintiffs claim the hazard allowance and the risk premium simultaneously and should bring greater certainty to this matter.
For further information on this topic please contact Patricia Barboza or Poliana César at CGM Advogados by telephone (+55 11 2394 8900) or email (firstname.lastname@example.org or email@example.com). The CGM Advogados website can be accessed at cgmlaw.com.br.
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