In addition to instituting the Green and Yellow Employment Contract and implementing various significant changes in labor and social security laws and regulations and in the rules regarding payment of Profit Sharing, Executive Order (MP) No. 905, published last Tuesday, November 12, amended article 224 of the Consolidated Labor Laws (CLT) relating to the working hours of bank employees.

Before the publication of the executive order, the normal duration of working hours of employees at banks, banking houses, and Caixa Econômica Federal was six continuous hours on business days, with the exception of Saturdays, totaling 30 hours of work per week.

With the publication of MP 905, the normal working hours for bank employees became six hours per day exclusively for those who work as a teller, expressly excepting the possibility of agreeing on longer working hours, at any time, via individual written agreement or collective bargaining agreement. In relation to other bank employees, working hours will be eight hours per day.

In the previous wording, article 224 of the CLT expressly stated that the normal working hours of bank employees did not include Saturdays, since activities should be performed from Monday to Friday. However, the new wording made no provisos/exceptions regarding the subject. Accordingly, there is no longer a legal prohibition on having bank employees work on Saturdays, subject to the limit of the 30-hour workweek.

However, the discussion regarding bank employees' ability to work on Saturdays is not limited to the wording provided for in article 224 of the CLT. This is because, according to Precedent No. 113 of the Superior Labor Court (TST), which is still in force, the bank employees' Saturday is an unworked business day.

In this sense, the amendment by MP 905 of article 224 of the CLT should lead to the cancellation of TST Precedent No. 113, since it denotes an apparent incompatibility with the Court’s summarized understanding, especially if the MP is approved by the Brazilian Congress.

Another issue that may give rise to debate is whether the weekly working hours of bank employees, with the exception of tellers, are 40 or 44 hours per week, as there is no express provision on the subject in article 224 of the CLT, as is the case with 30-hour work week shift for tellers.

Considering the limitation of 30 hours per week for tellers, it could be interpreted logically that, for other employees with a daily shift work of eight hours, the work week would be 40 hours.

However, in addition to the fact that article 224, head paragraph, of the CLT does not exclude Saturday from bank employees’ working hours, TST Precedent No. 124 provides for the application of divider of 220 in calculating bank employees' overtime hours with eight hour work days. Using the divisor 220 for the 30 days of the month we get 7.33 hours per day, which, multiplied by 6 days a week, results in a 44-hour weekday, which is why the discussion on the bank employees' weekly working hours has not yet been overcome.

With regard to the express authorization for working hours over six hours per day for bank employees working as tellers, it is important to remember that this possibility was already being defended by the labor courts, based on the systematic interpretation of articles 59 and 225 of the CLT.

Article 225 of the CLT provides that bank employees may work overtime on an exceptional basis, and article 59 of the CLT provides that daily working hours may be increased with overtime, not exceeding two hours, pursuant to an individual agreement or collective bargaining agreement.

That is, the only way to preserve both provisions in the legal system would be to find that bank employees may work overtime (i) exceptionally, even if there is no agreement in this regard; and (ii) habitually, when the agreement is formalized in the course of the employment contract, since article 225 of the CLT itself states that the general principles regarding the duration of work should be observed, such as the possibility of formalizing extension of working hours provided for in article 59 of the CLT.

This interpretation has not yet settled by the labor courts, but has been reinforced by MP 905, as article 225 of the CLT remained unchanged, thus maintaining the provision regarding the exceptionality of extension of bank employees' working hours. In view of the limitation of the special working hours to bank employees working as tellers, it should be considered that the wording provided for in article 225 is also limited to these professionals.

In addition to the amendment of article 224, head paragraph, of the CLT, and the inclusion of paragraph 3 mandating an eight-hour workday for other bank employees, paragraph 4 was also included in article 224 of the CLT, establishing that, in the event of a judicial decision that rules out an employee's classification within the exception provided for in paragraph 2 of article 224, the amount due by virtue of overtime and consequential payments must be fully deducted or offset in the amount of the bonus for the position and consequential payments.

This change was possibly the least impactful for this group of employees, as it only reproduces the first paragraph of section 11 of the Bank Employees’ Collective Bargaining Agreement (CCT), which since 2018 has governed any possible offsetting between overtime hours and position bonuses, in the event of de-qualification, in a labor claim, of the position with the bank as being one of trust.

The provision set forth in the CCT is now applicable to labor claims filed as of December 1, 2018, and, therefore, has been known to this group of workers for at least one year. However, the reproduction of this provision in the CLT is important in settling its application, since the validity of section 11 of CCT 2018/2019 has not yet been consolidated by the labor courts. The reason for this is the fact that some judges demonstrated a certain resistance to applying it, arguing that the provision constitutes intervention into the role of the judge, which is exclusive to the Judiciary, and, therefore, is not a question of the prevalence of what is negotiated over what is legislated.

Some judges also contend that employees hired before the effective date of the provision may not undergo prejudicial changes in the conditions of the labor contract, under the terms of article 468 of the CLT.

The matter was apparently settled with the publication of MP 905, which is immediately effective in relation to article 224 of the CLT.

The term of duration of MP 905 is 60 days, extendable once for the same period. If not converted into law during this period, the text will lose its effectiveness. This means that although the changes in bank employees' working hours indicate a positive and expected change, especially given that the activity of this group of employees in modern society does not have the same peculiarity that supported its special framework, it is possible that the text suggested by MP 905 not be converted into law, as we observed in relation to MPs 808/17 and 873/19.

Accordingly, we recommend that prior to making any changes to employees' employment contracts, even if via contractual amendment, financial institutions should be properly advised by their legal department in order to avoid undue or inapplicable changes in view of the still provisional nature of the executive order.

We will cover the main changes of MP 905 in the next articles in this series. Click here to read the analyses already published.