The 3rd Panel of the Superior Labor Court (TST) recently ruled in favor of proportional payment of Profit Sharing (Participação nos Lucros ou Resultados – PLR) to an employee who resigned during the assessment period.

The decision invalidated a provision in a collective bargaining agreement that excluded the payment to employees who resigned or who were terminated for cause. The reasoning was that PLR constitutes a non-waivable right and, therefore, could not be suppressed through collective bargaining[1].

This ruling has sparked considerable debate, with many questioning whether PLR should indeed be payable in such circumstances.

We have been closely monitoring decisions issued by Labor Courts on this matter and, based on our experience, we understand this is an isolated decision with no binding effect. It does not reflect the prevailing position of other TST panels, which hold that PLR is not a non-waivable right and that collectively bargained terms should prevail in such cases[2].

The Federal Constitution (CF) stipulates that PLR must be implemented pursuant to the law, and Law No. 10.101/00, which governs the matter, establishes that PLR must be instituted through collective bargaining.

Following the Labor Reform, Article 611-A of the Brazilian Labor Law (CLT) includes PLR among the rights that may be collectively bargained.  The Supreme Court (STF), in its ruling on Theme 1.046, upheld the precedence of collectively bargained agreements over statutory provisions and declared the constitutionality of this article.

In this context, TST Precedent No. 451 (which establishes that pro-rata payment of PLR in cases of termination) should not be applied. It reflects an outdated understanding—prior to the Labor Reform and the STF’s ruling on Theme 1.046.

It is therefore clear that neither the CF nor the CLT treat PLR as a non-waivable right, but rather as a right that can (and should) be negotiated. The parties (companies, employees, and labor unions) have autonomy to establish the rules and conditions for its payment.

Article 8, paragraph 3 of the CLT even mandates that, when analyzing collective agreements or conventions, the Labor Courts must base their decisions on the principle of minimal intervention in the autonomy of collective will.

Below are some examples of TST decisions supporting this view:

PROFIT SHARING (PLR). PROPORTIONAL PAYMENT. VALIDITY OF COLLECTIVE RULE. NON-APPLICATION OF TST PRECEDENT NO. 451. THEME NO. 1.046. The controversy centers on the validity of a collective rule excluding the right to proportional PLR payment for employees who resigned or were terminated for cause. In this case, the Regional Court disregarded TST Precedent No. 451 (...). In this context, considering that PLR payment is not a non-waivable right and is subject to collective bargaining, the Regional Court’s conclusion regarding the validity of the rule limiting proportional PLR payment aligns with the general repercussion thesis established by the STF in Theme No. 1.046, which is binding. (...). (TST - AIRR: 00103062720225180003, Reporting Judge: Dora Maria da Costa, 8th Panel, Publication Date: 12/03/2024) (emphasis added)

(...) PAYMENT OF PLR ONLY TO EMPLOYEES WITH ACTIVE CONTRACTS. COLLECTIVE BARGAINING. (...) OVERRULING OF THE UNDERSTANDING IN TST PRECEDENT NO. 451. (...) APPLICATION OF THE BINDING LEGAL THESIS ESTABLISHED IN STF THEME 1.046. (...) In this case, the Collective Rule (...) provides that “profit sharing shall be subject to negotiation between the company and its employees,” clearly indicating its nature as a waivable right. This conclusion is further supported by Article 611-A, item XV, of the CLT. Accordingly, aspects such as payment method and frequency may be defined by normative clauses. For this reason, the directive in TST Precedent No. 451 is deemed superseded both by the STF’s general repercussion thesis and by the new labor legislation. Thus, the regional decision must be overturned to align with the binding and erga omnes effects of the STF’s ruling. (...). (TST - RR: 10009213120225020020, Reporting Judge: Luiz Jose Dezena Da Silva, 1st Panel, Publication Date: 09/30/2024) (emphasis added)

(...) PROFIT SHARING. LIMITATION BY COLLECTIVE RULE. VALIDITY. (...) As PLR is not considered a non-waivable right, the autonomy of the parties must be upheld, as provided in Article 7, item XXVI of the Federal Constitution. (...). (TST - Ag-RR: 0000166-85.2021.5.12.0018, Reporting Judge: Breno Medeiros, 5th Panel, Publication Date: 11/27/2023) (emphasis added)

Therefore, any decision mandating proportional PLR payment in cases of resignation or termination for cause, where a collective rule provides otherwise, expressly violates:

  • Article 611-A, item XV of the CLT;
  • the STF’s established understanding in Theme 1.046; and
  • the majority jurisprudence of the TST on the matter.

It is essential for companies to clearly and objectively define the payment rules and termination scenarios when negotiating PLR agreements. Clear rules can mitigate potential disputes and reduce labor risks.

In the event of judicial decisions that contradict the collective agreement, companies should pursue appropriate legal remedies, including before the STF, to uphold Theme 1.046 and ensure the legal certainty of the PLR agreement.

 

[1] TST - RR: 1000601-02.2023.5.02.0034, Reporting Judge: Alberto Bastos Balazeiro, Judgment Date: 06/18/2025, 3rd Panel, Publication Date: 07/01/2025

[2] TST - AIRR: 0010306-27.2022.5.18.0003, Reporting Judge: Dora Maria da Costa, Judgment Date: 11/27/2024, 8th Panel, Publication Date: 12/03/2024; TST - RR: 1000921-31.2022.5.02.0020, Reporting Judge: Luiz Jose Dezena da Silva, Judgment Date: 09/25/2024, 1st Panel, Publication Date: 09/30/2024; TST – Ag-RR: 0001028-36.2021.5.09.0084, Reporting Judge: Amaury Rodrigues Pinto Junior, Judgment Date: 08/21/2024, 1st Panel, Publication Date: 08/26/2024; TST – Ag-RR: 0000166-85.2021.5.12.0018, Reporting Judge: Breno Medeiros, Judgment Date: 11/22/2023, 5th Panel, Publication Date: 11/27/2023.