On several occasions, the TST (Superior Labor Court) has ruled in favor of a 50% additional payment for the break period not taken by employees working a 12×36 shift. In a judgment by the 4th Chamber, the court ruled as legal the additional 50% payment for the break period not enjoyed:

RECURSO DE REVISTA. 12X36 SHIFT. SUPPRESSION OF THE INTRAJOURNAL BREAK. IMPOSSIBILITY.

1. The understanding established by TST’s Summarized Ruling No. 437, I, dictates that the failure to provide or partially provide the required intra-journal break entails the full payment for the period missed, with an additional 50% of the employee’s regular hourly rate. Thus, the provision in collective bargaining agreements for a 12-hour workday followed by 36 hours of rest does not exempt the employee from the right to the mandatory intra-journal break as stipulated in Article 71 of the CLT (Consolidation of Labor Laws).
2. A regional court decision declaring the intra-journal break unnecessary in a 12×36 shift contradicts Summarized Ruling No. 437, I of the TST.
3. The review appeal is accepted and the ruling is revised accordingly.

Such decisions raise an interesting question regarding labor law, particularly given that the intra-journal break is deeply entrenched in labor justice. The payment for a missed break with a 50% surcharge is disputed under the Constitution, CLT, TST rulings, and regional courts. The key issue here is: should the missed break be compensated with the 50% surcharge plus one full hour of work, or should only the 50% surcharge be paid, since the 12×36 shift already accounts for paid work hours? In other words, should the payment be in the form of “50% + 1 hour” or simply “50%”?

LEGAL PROVISION FOR THE 12×36 SHIFT: Firstly, it is essential to point out that the 12-hour work shift followed by 36 continuous hours of rest is outlined in Article 59-A of the CLT, which allows for this shift structure to be defined through individual agreements post-labor reform.

On the other hand, the overtime for missed intra-journal breaks is established by Summarized Ruling No. 437 of the TST, which states:

Summarized Ruling No. 437 of TST: INTRAJOURNAL BREAK FOR REST AND MEALS. APPLICATION OF ART. 71 OF CLT. I. After the enactment of Law No. 8.923/94, failure to provide or partial provision of the mandatory intra-journal break for rest and meals, for both urban and rural employees, entails the payment of the full corresponding period, not just the missed period, with an additional 50% at minimum on the employee’s regular hourly rate, as specified in Article 71 of the CLT, without prejudice to counting the actual work hours for remuneration. II. Clauses in collective agreements or conventions that allow the suppression or reduction of the intra-journal break are invalid because such breaks are considered matters of hygiene, health, and work safety, guaranteed by public policy (Article 71 of the CLT and Article 7, XXII, of the Federal Constitution).

The first section of the ruling clearly states that “failure to provide or partial provision of the mandatory intra-journal break” requires the full period to be compensated, not just the missed portion, with an additional 50% surcharge on the regular hourly rate. This rule applies not only to regular shifts but also to special shift structures, in line with the TST’s settled understanding.

ANALYSIS OF THE COURT’S RULING AND LEGISLATION – THE CHALLENGE OF REMUNERATING THE INTRAJOURNAL BREAK UNDER THE CLT: To analyze this issue, let us first observe the case of an employee on the most common work schedule, a 44-hour week with 8 hours per day and a 1-hour intra-journal break. In this case, the employee is not working continuously for 8 hours, as the 1-hour break is guaranteed. If this employee does not take the 1-hour break, they must be compensated with overtime, which will be calculated as 150% for the 9th hour worked, instead of taking that hour as a rest break.

For an employee working a 12×36 shift, however, the situation is different. This shift assumes the employee works 12 continuous hours followed by 36 hours of rest. However, the intra-journal break of 1 hour must be taken within the 12 working hours. If the employee stops for a 1-hour break and resumes working afterward, they will be unable to enjoy the full 36-hour rest period. For example, if an employee works from 8:00 AM to 8:00 PM with a break while working, they would still be able to take the full 36-hour rest period. On the other hand, if the employee takes a 1-hour break during the shift, they would have to stay until 9:00 PM, which interferes with the 36-hour rest period.

Even if the employee works for 11 hours and rests for 1 hour, the employer may require them to eat while working, and the employee should receive overtime for being available during the break period. In this case, it would not be appropriate to pay 150% for the hour in question, as each hour of the 12×36 shift is already paid for due to the continuous nature of the shift. The correct approach would be to add only the 50% overtime surcharge without the need to apply the 150% multiplier.

However, this is not how the regional labor courts have ruled. In cases where overtime is awarded for the missed intra-journal break, judges have applied the 150% multiplier, meaning that the missed hour is compensated at 150%, resulting in a total of 150% for each missed hour. This reasoning ignores the fact that the 12×36 shift already compensates the employee for 12 hours of work and indirectly transforms the 12×36 shift into an 11×36 shift, as the intra-journal break is included in the calculation.

This issue has never been addressed directly by the Labor Courts, which is why the TST has not yet provided a definitive ruling on it, leaving a gap that creates significant uncertainty for both employers and employees working in shifts across the country.

CONCLUSION: In conclusion, the issue of paying overtime to employees on a 12×36 shift who do not take the intra-journal break, with a 50% surcharge and not 150%, remains a point of legal debate. The 12×36 shift assumes that the employer has already paid the employee for the 12 continuous hours of work.

Employers must remain diligent and proactive in managing their 12×36 shift contracts to avoid unexpected costs related to overtime pay for missed breaks.

It is equally important for employers to seek specialized legal advice to help them make informed decisions regarding their employment contracts, particularly for unique schedules like the 12×36 shift, as discussed in this article.

Source: CONJUR