The Supreme Court of Justice, on April 5, 2017, in ruling SL5584-2017 (M.P. Jorge Luis Quiroz), established that labor availability enshrined in the contract entitles the worker to payment for this time and for overtime, surcharges, and compensation for mandatory rest days. Therefore, this article aims to present the Court's arguments on the availability of granting remuneration to the worker, and the specific circumstances that must occur to consider that the worker is entitled to what is established in the ruling.
Thus, the Ministry of Social Protection in 2008 issued a concept clarifying that there are two types of availability: first, when the worker is normally restricted in their freedom, unable to move to where they wish, because they must be in an exact or determined place required by the service demanded; and second, availability where the subordinate is allowed to use their time as they wish, such as sleeping, going out for coffee, visiting friends, without the requirement to remain at the workplace or another determined place[1]. The latter is not considered remunerated, since subordination, which is an essential element for labor availability to constitute remuneration, is not continuously present.
According to the above, such availability must be agreed upon in the contract; however, there is a regulatory gap regarding non-contractual availability, on which the Supreme Court of Justice has not ruled on the merits, and it is limited only to what was stipulated in the contract. Thus, the issue of labor availability has not been further developed by administrative authorities. Therefore, the ruling under analysis issued by the Supreme Court of Justice is considered relevant for the development of labor contracting mechanisms.
In this sense, it is necessary to clarify that this ruling brings significant benefits for contracts where the labor availability clause has been agreed upon. However, these benefits do not apply to positions of trust and management[2].
In this sense, the ruling is especially aimed at clarifying that the worker, although on labor availability and not performing real and effective work, must be remunerated for that time, since the employer can request the worker to be available at any time, and it is at that moment that subordination is configured, and consequently, the worker cannot freely dispose of their time.
Before this decision, there was no place to pay availability as supplementary working hours, since it was understood that by agreeing to a fixed salary, availability was absorbed, that is, it was considered ordinary working hours, taking into account overtime only when effective activities were performed; otherwise, there was no remuneration whatsoever[3].
According to the above, it is necessary to clarify that such availability cannot be permanent[4] because the employer cannot dispose of the subordinate's time, since the worker must share with their family and must rest, as it is their right; therefore, rest days and overtime generated in a state of availability must be compensated.
Thus, the employer must be very careful when stipulating contractual clauses regarding the worker's availability, since in most contracts such availability is agreed upon by means of an adhesion to the contract, which implies new obligations that were not previously considered.
Accordingly, new contracts must be entered into with more caution. However, contracts entered into prior to this ruling cannot be modified, due to the principle of favorability in labor matters, so it is imperative to assume this new effect, and its consequence is the payment for the time the subordinate is required.
Therefore, it is necessary to consider availability according to the position, overtime, daytime and nighttime surcharges, and to compensate for mandatory rest days. Additionally, when the employer requests the worker's availability, it must be taken into account that this cannot be permanent.
Similarly, the Substantive Labor Code, in its Article 23, literal b, stipulates that the employer has the right to demand compliance with orders from the worker when deemed appropriate or required, but as explained above, it cannot be permanent, and when the employer demands the agreed labor availability, as long as the position is not one of trust, it must be remunerated.
Thus, the ruling granted new rights for the worker and new obligations for the employer, changes the way labor availability is viewed, and to a certain extent curbs the excessive subjectivity that the employer may exercise, generating peace of mind for subordinates, since their effort and sacrifice of time with their family, postponing rest, will be monetarily compensated.