Article 14 of Law No. 4.860 of 26/11/1965 provides for a risk premium pay of 40% of the daytime hourly pay to remunerate the risks related to unhealthy work, dangerous work and other existing risks. The same law sets forth that no other premium pay other than this one will be due to port workers.
A Santa Catarina port worker, who worked in the area of foremanship, filed a lawsuit at a labor court to claim the unpaid premium pay set forth in Law No. 4.860. Upon the judgment of the suit, the first instance court rendered a decision in favor of the payment, understanding the rule applies “to all workers or employees of the administration of organized ports subject to any exploration regime”.
The losing company appealed to the 12th Region (SC) Labor Court, which confirmed the first instance decision.
Dissatisfied with such decision, the company appealed to the Superior Labor Court (TST). The Seventh Panel of the TST understood upon the judgment of the appeal that the appellant company was right. According to the appeal’s reporting judge, this matter was settled in 2011 with the issuance of Case Law Guideline #402, from the First Subsection Specialized in Individual Employment Disputes.
This Case Law Guideline stipulates the following:
“The risk premium pay set forth in article 14 of Law No. 4.860, of 26.11.1965 applies only to port workers working in organized ports, and cannot be granted to those working in private terminals”.
As the claimant in the lawsuit did not fit the hypothesis set forth in the Case Law Guideline, the company’s appeal was granted and the port worker’s claim held invalid.