The Superior Labor Court - TST published a public notice, on the fifth of this month, inviting those interested in providing amicus briefs in the decision on a case involving a minimal reduction on breaks for meal and rest (0001384-61.2012.5.04.0512), reported by Justice Kátia Magalhães Arruda. A formal expression of interest must be filed on the case files no later than July 20, 2017.

In the decision to be issued within the scope of Individual Disputes Section I of the TST, the breaks for meals and rest will be discussed when there is a minimal reduction in their duration. TST will also define what constitutes a minimal reduction and, in case it considered irregular, what the consequences should be.

It is the right of employees to have at least one and at most two hours of break when the workday is equal to or greater than six hours per day. For those who work up to six hours, the break is 15 minutes. For workdays of less than four hours, no break is required by law.

If there is a total or partial reduction in this break, employees are entitled to receive as overtime the total period of the break, not just the minutes actually suppressed. However, there is debate as to whether this consequence should be applied when the time of the reduction is minimal, since the purpose of the rule (the granting of breaks for meals and rest) would have been met.

Part of the legal scholarship and case-law takes the position that a minimal reduction is equivalent to up to 10 minutes for a break of a minimum of one hour. The rule of Article 58, paragraph 1, of the Consolidated Labor Laws - CLT is applied by analogy, whereby time card record variations of up to 10 minutes are to be disregarded for the purposes of calculating overtime. Precedent 79 of the Regional Labor Court - TRT of the 4th Region (Rio Grande do Sul) confirms this understanding.

However, Precedent 19 of the TRT of the 9th Region (Paraná) goes in the opposite direction by determining article 58, paragraph 1, of the CLT should not be applied in determining whether there was a reduction in the break for meal and rest.

This unmistakable divergence leads to the need for standardizing of Brazilian case-law, which is why, in the lawsuit number 0001384-61.2012.5.04.0512, the 7th Panel of the TST approved a proposal to institute an Incident of Repetitive Appeals for Review, thereby referring the case for decision by the SDI-1, which will establish a legal theory with the effect of precedent (binding on lower courts).

In a decision by the SDI-1, the justices unanimously accepted the proposal approved by the 7th Panel and the matter was accompanied by the majority of the Plenary Session of the TST (the losing votes were to submit the matter to the Plenary Session of SDI-1). The reporting justice in this action ordered a stay of all appeals for review and motions for clarification pending before the TST that deal with this subject. It was also requested the issuance of official letters to the chief justices of all the TRTs requesting that they provide information on the subject, indicate up to two appeals that are representative of the controversy, and clarify the terms of the precedents and theories that might prevail that have been issued by the corresponding Regional Labor Courts.

If TST settles the understanding that minimal reductions in workday breaks does not lead to overtime pay, thereby specifying in an objective manner what constitutes a minimal reduction, companies will be able to defend themselves against judicial actions and investigations with greater legal certainty. They may also adopt more efficient and clear organizational procedures to avoid labor violations and liabilities.