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Unanimous Decision of the 5th Panel Exempts Energy Distributor from Paying Differences to Engineer and Reinforces Application of the 2012 Law.
The TST decided that the hazard pay should be calculated only on the base salary, and not on the total compensation. As a result, an energy distributor was exempted from paying differences to an electrical engineer who had requested a review of his remuneration.
According to Conjur, the ruling reaffirms the application of Law 12.740/2012, which changed the calculation basis for the allowance, even for contracts initiated before the law took effect.
The decision was unanimous in the 5th Panel and considered that the protection extends immediately to all ongoing relationships.
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How The Calculation of The Allowance Worked Before and After The Law
Until April 2013, the company paid the hazard pay based on the engineer’s total compensation, supported by the old Law 7.369/1985.
This rule, however, was revoked by Law 12.740/2012, which determined that the amount should correspond to 30% of the base salary. The change had a direct impact on the final amount received by professionals exposed to risky activities.
According to Conjur, the Regional Labor Court of the 18th Region (GO) had understood that the new calculation method would only apply to contracts signed after 2012, as per Summary 191, item III, of the TST itself.
Since the engineer’s employment started in 2005, the TRT ordered the company to pay retroactive salary differences.
The Appeal and Interpretation of The TST
Dissatisfied, the distributor appealed to the TST. The rapporteur, Minister Breno Medeiros, emphasized that, although the summary indicated another interpretation, the Court’s Plenary, in the ruling of a repetitive appeal (Theme 23), had already decided that Law 13.467/2017, known as the labor reform, should be applied immediately to contracts in force.
Thus, for the panel, the 2012 change regarding hazard pay cannot be limited to new contracts only.
The understanding is that the law update also applies to previous employment relationships, as long as they remain active.
Impact of The Decision on Workers and Companies
The TST’s stance ensures uniformity in handling the issue and reduces the scope for similar legal disputes.
For workers, it means that there will be no right to salary differences if they receive the allowance calculated only on the base salary. For companies, the decision represents greater predictability and lower risk of high-value convictions.
The decision also reinforces that the hazard pay has a protective nature, but its calculation basis must observe the current rule, regardless of the date the employment contract was signed.
This understanding aligns with the legal certainty sought by the court.
The ruling of the 5th Panel of the TST consolidates the guidance that the hazard pay should be calculated based on the base salary, applying immediately to all contracts, old or new.
For the court, the legislative change cannot be interpreted restrictively, under penalty of compromising the coherence of the jurisprudence.
And you, do you agree with the TST’s decision? Do you think that calculating the hazard pay only on the base salary ensures balance between worker protection and company sustainability? Leave your opinion in the comments — we want to hear from those living this reality in practice.
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