In a judgment held last Monday (March 20), in an incident of repetitive appeal (Case No. 10169-57.2013.5.05.0024), the Superior Labor Court (TST), contrary to a jurisprudence consolidated 13 (thirteen) years ago, decided that the compensation for weekly rest, with the inclusion in the calculation of overtime worked by the employee, must reflect on other funds (such as vacation and 13th salary).

This decision should burden the payroll of companies when there is habitual overtime. Until then, the position (stated in the Jurisprudential Guidance (OJ) No. 394) was that the reflection of these amounts in the calculation of labor funds would generate double payment to the employee.

The new wording of the OJ is:

OJ 394. I – the increase in the value of the paid weekly rest resulting from the integration of habitual overtime hours must be reflected in the calculation made by the employer of the other installments that that are based on the salary, not cogitating “bis in idem” in the calculation of vacation, Christmas bonus, prior notice and FGTS;

II – Item I will be applied to overtime worked as of March 20, 2023.

According to the vote of the Minister Amaury Rodrigues Pinto Junior, it is not possible to prohibit the incidence of reflexes on vacation, Christmas bonus, prior notice and Guarantee Fund from the paid weekly rest by integrating overtime. He also stated that this position was based on a mathematical and legal error.

The Minister Alberto Bastos Balazeiro considered that there is no double payment with the repercussion of the sum of overtime and paid weekly rest in other labor monies, agreeing, therefore, with the vote of the rapporteur.

The new guidance should be followed as of the date of the judgment, and is binding. In other words, as of March 20, 2023, the overtime hours worked will have repercussions on the paid weekly rest period and, this sum, on the other labor sums.