Cesar Peres Dulac Müller logo

CPDMA BLOG

Category:
Date: 31 de October de 2022
Posted by: CPDMA Team

Declaration of unconstitutionality of TST precedent 450, which provides for the remuneration of double vacation pay for late payment

Imagem indicativa de um pagamento ilustrando a inconstitucionalidade da súmula 450 do TST.

On August 05, 2022 the trial of the Action for breach of fundamental precept (ADPF) 501 took place, proposed by the state of Santa Catarina in the Federal Superior Court.  On that occasion the ministers declared, by majority vote, the unconstitutionality of the Precedent 450 of the Superior Labor Court, which provides for the worker's vacation pay to be doubled, including the constitutional third, in case of late payment.

As Alexandre de Moraes well analyzed when he cast his vote, the protective principle in labor law cannot override the legislation in force and give rise to sanctions not provided for in the law, under penalty of a conflict of powers, and it is not up to the judiciary to act as legislator.

Within this context, it is important to note that the Consolidation of Labor Laws (CLT) provides for the payment in double of the aforementioned portion only when it is granted after the legal deadline, and the legislator failed to mention any penalty to the employer in the event of late payment of vacation. 

The rapporteur followed his argument in the sense that to admit the condemnation of companies on the basis of a precedent that authorizes the transfer of the proposed penalty to a different case would be to give an interpretation of a different nature than the restrictive one, which is applied to sanctioning rules.

The understanding in the summarized form, therefore, violates the fundamental precepts of legality and separation of powers; in addition to creating a penalty not provided for in law and punishing the employer twice for the same act - the CLT itself, in its article 153, provides the penalty applicable for failure to comply with the obligation to pay the vacation at least two days in advance.

Finally, the Plenary also invalidated court decisions without res judicata that have applied, by analogy, the penalty of double payment based on article 137 of the CLT and embodied in the validity of the precedent.

By: Joice Müller

Labor Law | CPDMA Team

Return

Recent posts

Abuso do poder de controle nas sociedades anônimas: limites e consequências

Nas sociedades anônimas, a figura do acionista controlador desempenha papel central na definição dos rumos estratégicos da companhia. Detentor do poder de eleger a maioria dos administradores e de influenciar as deliberações sociais, esse acionista possui uma posição de destaque que, embora legítima, deve ser exercida dentro dos limites legais e em consonância com os […]

Read more
STJ recognizes extrajudicial exclusion of partner based on private instrument, without registration with the Board of Trade

In a recent decision, the Third Panel of the Superior Court of Justice (STJ) upheld the extrajudicial exclusion of a partner based on a private instrument signed by all members of the company, even without registration with the Board of Trade.[1]

In the case under review, after the company's formation and registration, the partners signed a document called a "statute," [...]

Read more

STF suspends proceedings on the legality of service provision contracts across the country

The Supreme Federal Court (STF) has decided to suspend, nationwide, all legal proceedings that question the legality of service provision contracts, commonly known as “pejotização”. The decision, issued by Justice Gilmar Mendes, aims to standardize the interpretation on the matter and ensure legal certainty. The STF recognized the general repercussion of the issue when it […]

Read more

CPDMA's role was decisive in the Supreme Federal Court's ruling reaffirming the case law on the use of legal entities in labor relations.

Uma importante decisão proferida recentemente pelo Supremo Tribunal Federal (STF), a partir de atuação da equipe trabalhista Cesar Peres Dulac Müller Advogados, trouxe novamente à tona a relevância da observância aos precedentes vinculantes da Corte em matéria trabalhista, especialmente quanto à licitude de formas alternativas de contratação, como a prestação de serviços por pessoa jurídica — prática […]

Read more

Annual meeting for accounts review

The annual holding of the Ordinary General Meeting (OGM) for the accountability of the administrators is a legal requirement provided for in Law No. 6,404/1976 (Brazilian Corporations Law), specifically in Articles 132 and following. This provision establishes that the OGM must take place within the first four (4) months following the end of the fiscal year, usually by […]

Read more

The Full Bench of the Superior Labor Court rules on new binding precedents

The Full Bench of the Superior Labor Court, in a session held this Monday (24), established legal theses on new topics, as part of a procedure to reaffirm its jurisprudence. These are matters that, as they are already settled, were submitted to the repetitive appeals procedure to define a binding legal thesis. The establishment of qualified precedents has a direct impact […]

Read more
crossmenuchevron-down
en_USEnglish
linkedin Facebook pinterest youtube lol twitter Instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter Instagram