{"id":289,"date":"2015-02-26T14:45:39","date_gmt":"2015-02-26T17:45:39","guid":{"rendered":"http:\/\/dvwca.com.br\/?p=289"},"modified":"2026-01-27T12:25:55","modified_gmt":"2026-01-27T15:25:55","slug":"bancarios-e-banqueiros-horas-extras-aguardando-e-realizando-audiencias-na-justica-do-trabalho","status":"publish","type":"post","link":"https:\/\/devivo.letsite.com.br\/en\/bancarios-e-banqueiros-horas-extras-aguardando-e-realizando-audiencias-na-justica-do-trabalho\/","title":{"rendered":"Bank employees and bankers: working overtime while waiting for and attending hearings in Labor Court."},"content":{"rendered":"

Legal uncertainty reigns in Brazil across a wide range of relationships, whether between private individuals, between individuals and the government, or even between different government entities. Labor relations are no exception, particularly in the banking sector: so numerous interpretations revolve around their very classification, encompassing basic rights such as overtime and positions of trust, that these professionals, as well as their employers, could even receive a “hearing allowance” from the government upon termination of employment. This could be achieved through compensation with some tax, for example, taking advantage of this year’s increased tax burden.<\/span><\/p>\n

Furthermore, this “hearing allowance” could be extended to anyone destined to appear in Labor Court on the same day as a hearing debating their employment relationship, due to the delays and setbacks these proceedings cause. The time spent stems from the need for the parties to produce evidence regarding each of the interpretations surrounding the matters: since there are so many, this usually demands a significant amount of time!<\/span><\/p>\n

The principles of due process and the right to a full defense, enshrined in the Federal Constitution, are not in question: if there are multiple arguments, the parties have the right to prove that they fall under them. The problem is the multiplicity of interpretations of the same legal provisions.<\/span><\/p>\n

To begin with, not all bank employees work in banks. And this has been the case for a long time. As the old Law No. 4,595\/1964 regulated monetary, banking, and credit institutions in a single normative act, the Superior Labor Court ended up issuing, in 1974, the current Precedent No. 55, stating that credit, financing, or investment companies, also called financial institutions, are equivalent to banking establishments with regard to the working hours of their employees. As if these provisions were quite clear and did not require intense discussion!<\/span><\/p>\n

In fact, the Consolidation of Labor Laws (CLT) stipulates that the normal working hours for bank employees are 6 (six) continuous hours on weekdays, except Saturdays, totaling 30 hours of work per week. Furthermore, it also establishes that the normal working hours must be between 7 am and 10 pm, ensuring the employee a 15-minute break for meals during the daily schedule.<\/span><\/p>\n

Article 225 of the same legal document even allows for the normal working hours of bank employees to be exceptionally extended up to 8 (eight) hours per day, not exceeding 40 (forty) hours per week, observing the general precepts regarding working hours. What constitutes “exceptionally,” however? It is unclear.<\/span><\/p>\n

The provision refers to the “general precepts on working hours,” but these, specifically in article 59 of the CLT (Consolidation of Labor Laws), stipulate that the normal working hours may be increased by supplementary hours, not exceeding 2 (two), by written agreement between employer and employee, or by collective bargaining agreement. In other words, is the “exceptional” nature of overtime for bank employees a written agreement? For some it is, for others it isn’t.<\/span><\/p>\n

In any case, if it is a written agreement, it is generally accepted that it cannot be from the time of hiring. According to the Superior Labor Court itself, now in Precedent No. 199, the contracting of supplementary work at the time of hiring a bank employee is null and void. The amounts thus agreed upon only remunerate the normal working hours, with overtime hours due with an additional minimum of 50% (fifty percent), which do not constitute pre-contracting if agreed upon after the bank employee’s hiring. That is, after hiring it is possible. How long after, two hours? It’s also unclear: there are decisions to suit all tastes.<\/span><\/p>\n

Confused so far by a bank employee who doesn’t work in a bank, who may or may not work overtime (“exceptionally”), provided there is a written agreement after (a few hours) of hiring? That’s nothing compared to what the concept of “bank trust position” can generate!<\/span><\/p>\n

The limitation of working hours is one of the first major achievements of workers and in Brazil stems from the Federal Constitution itself, which provides for the right to a normal working day not exceeding eight hours and forty-four hours per week, allowing for the compensation of hours and the reduction of working hours, through agreement or collective bargaining agreement. The exceptions, therefore, would be up to the Union to regulate.<\/span><\/p>\n

But the Consolidation of Labor Laws, enacted before the current Federal Constitution, already stipulated that the following are not covered by the regime that makes the control of working hours and the payment of overtime mandatory: (i) employees who perform external activities incompatible with the establishment of working hours; (ii) managers, considered to be those holding management positions, to whom directors and heads of departments or branches are equated.<\/span><\/p>\n

As the exception in the CLT does not correspond to the exception in the Federal Constitution, there are still those who say that this part of the CLT was not received by the Constitution, that is: no employee should be excluded from the regime. Another example of a thesis seen in some judicial decisions.<\/span><\/p>\n

However, in most judicial decisions, the validity of the CLT (Consolidation of Labor Laws) provision prevails, effectively making exceptions to the control of working hours and the payment of overtime for external employees and those in management positions. But these exceptions are very restricted: only external work that is truly incompatible with the control of working hours falls under this provision, while management positions are those that are synonymous with the employer, i.e., the highest authorities in the company.<\/span><\/p>\n

There is already considerable controversy regarding the classification within these restricted exceptions. Telematic means, for example, already make it possible, in theory, to control the working hours of many workers. On the other hand, even the highest authorities in the company are subject to the will of the partners, whether expressed directly by themselves or through a board; even partners report to each other, dispelling the idea of \u200b\u200bthe “figure that is synonymous with the employer.” In practice, one sees everything on this subject in the Labor Courts.<\/span><\/p>\n

And the situation of bank employees is even worse. This is because Article 224, \u00a72, of the CLT (Consolidation of Labor Laws) exempts bank employees who hold management, supervisory, leadership, or equivalent positions, or who perform other positions of trust, from the six-hour daily work limit, provided that the bonus is not less than 1\/3 (one third) of the base salary.<\/span><\/p>\n

Therefore, there is a junior position of trust (not requiring much trust), which authorizes bank employees (whether or not they work in a bank) to work exactly like employees in other categories, up to eight hours a day and forty-four hours a week; and a senior position of trust (high trust), which authorizes anyone to work any hours they want.<\/span><\/p>\n

Obviously, there is great confusion in jurisprudence; after all, what exactly differentiates one position of trust from another? The existence of subordinates? The importance and autonomy of decisions? The possession of authority and power of attorney from the bank? Nobody knows, and everyone interprets it as they wish.<\/span><\/p>\n

In an attempt to reduce litigation, the Superior Labor Court issued another ruling, No. 287: \u201cThe working hours of a bank employee who is a branch manager are governed by Article 224, \u00a7 2, of the CLT. As for the general manager of a bank branch, the exercise of a management position is presumed, and Article 62 of the CLT applies to them.\u201d This seems clear specifically in relation to banking establishments, but there is significant case law arguing that the job title and the receipt of a bonus are not enough to characterize the exercise of a banking trust position; it is necessary to actually have autonomy, and some argue that they must also be subordinate, thus entering the realm of indeterminacy.<\/span><\/p>\n

In the case of “bank employees” who don’t actually work in banks, the confusion is widespread. Summary Judgment No. 287 of the Superior<\/span><\/p>\n

Labor Court (TST) is of little help, as it specifically refers to “branches,” and many financial institutions don’t have them. As a result, when bank employees and bank managers file labor lawsuits seeking overtime pay, they are forced to defend an endless number of arguments and produce evidence for every decision the employee made during their employment and the importance of each decision to the institution. Beyond that, there’s the issue of proving hours worked, which, without proper control, is always highly imprecise: who can say what time they started and finished work every day for five years?<\/span><\/p>\n

So, do they deserve “hearing fees” or not?<\/span><\/p>","protected":false},"excerpt":{"rendered":"

Legal uncertainty reigns in Brazil across a wide range of relationships, whether between private individuals, between individuals […]<\/p>\n","protected":false},"author":1,"featured_media":1615,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-289","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-noticia"],"acf":[],"_links":{"self":[{"href":"https:\/\/devivo.letsite.com.br\/en\/wp-json\/wp\/v2\/posts\/289","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/devivo.letsite.com.br\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/devivo.letsite.com.br\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/devivo.letsite.com.br\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/devivo.letsite.com.br\/en\/wp-json\/wp\/v2\/comments?post=289"}],"version-history":[{"count":2,"href":"https:\/\/devivo.letsite.com.br\/en\/wp-json\/wp\/v2\/posts\/289\/revisions"}],"predecessor-version":[{"id":1946,"href":"https:\/\/devivo.letsite.com.br\/en\/wp-json\/wp\/v2\/posts\/289\/revisions\/1946"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/devivo.letsite.com.br\/en\/wp-json\/wp\/v2\/media\/1615"}],"wp:attachment":[{"href":"https:\/\/devivo.letsite.com.br\/en\/wp-json\/wp\/v2\/media?parent=289"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/devivo.letsite.com.br\/en\/wp-json\/wp\/v2\/categories?post=289"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/devivo.letsite.com.br\/en\/wp-json\/wp\/v2\/tags?post=289"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}