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