Dissent, in labor law, is the term used to designate a disagreement between companies and workers that ends up being brought to justice. The most common divergence is in relation to salary adjustments. In this case, the agreement is called a salary agreement.
Although salary adjustments are the most common cause of disagreement, disagreement can occur over other issues, such as the value and provision of benefits such as food stamps, transportation stamps, child care subsidies, and health insurance. , for example.
An agreement can be individual or collective. The individual settlement is due to a lawsuit filed by a specific worker against their employer. This occurs, for example, when the employee wants to collect in court compensation for wages, overtime pay, or other differences related to salary, benefits, and other rights.
The concept of collective bargaining refers to lawsuits that represent a complete category and that are generally initiated by unions.
How does collective bargaining work?
In Brazil, in addition to the Consolidation of Labor Laws (CLT), some labor rights are determined by collective agreements or conventions , as is often the case with salary adjustments and benefits to which workers are entitled. Although the collective agreement is signed between the employees ‘union and a company, in the convention, the employer is represented by the employers’ union.
Generally, when signed, a collective agreement or convention is usually valid for one year (according to CLT, the maximum validity of the document is two years). The date the agreement becomes effective is called the base date and is always the 1st of the month determined for the category.
When the term of an agreement ends, companies and unions begin to negotiate a new agreement or convention, seeking to determine the value of the salary increase and the benefits of other workers.
If the parties cannot reach an agreement during bargaining, the case is taken to the Labor Court, generating a collective bargaining agreement. If the discussion is about the salary increase, it is the Justice that will determine the values of the readjustments.
The increase or rights granted by the Court must be paid to all workers in the category that filed the lawsuit. In other words, even the worker who never individually went to court against the employer may be entitled to the values of the agreement when his union took over the dispute.
How is the settlement paid?
After the Court’s decision, the readjustment or the benefits to which the workers are entitled take effect from the base date that marks the beginning of the agreement or convention. The month of the base date depends on the category to which the worker belongs. Therefore, the company must make the retroactive payment of the agreement until that base date.
For example, if a category has July as its base date, but the court decision will only be issued in November, companies must pay the difference for the months of July, August, September, October and November. Starting in December, workers will also receive their wages and benefits adjusted by the specified amount.
How to calculate the salary agreement
To know how much the salary increase resulting from the agreement will be, the worker must apply the adjustment percentage determined by the Justice to the value of his salary.
New salary = old salary + (old salary x percentage increase)
For example, if the worker earned R $ 2,500 and, in the category agreement, his union achieved an adjustment of 10%, the calculation is as follows:
New salary = R $ 2,500 + (R $ 2,500 x 10/100) = R $ 2,500 + R $ 250 = R $ 2,750
To calculate the back pay, you need to take into account the number of months between the category base date and the disclosure of the agreement.
Retroactive payment = increase in reais x number of months
In the case of the previous example, the worker’s increase in reais is R $ 250. If the base date for his category is July and the agreement was resolved in November, the number of months is equal to five. The calculation of the retroactive payment of the salary of this worker is as follows:
Retroactive payment = R $ 250 x 5 = R $ 1,250
In other words, in addition to starting to receive a higher salary as of December, this worker will also be entitled to an additional payment of R $ 1,250, in reference to the salary differences of the previous months.
If the worker has been in the company for less than one year, he is not entitled to all the adjustment granted to his category. In this case, the percentage of increase will be proportional to the number of months worked.
For example, if the category got a 10% adjustment, but a worker has only been with the company for six months, they will only be entitled to a 5% raise. His readjustment equals half the increase of his colleagues because he has only been at work for half a year.
What happens when the company does not pay the agreement?
If a company does not pay the amount determined by the agreement, the agreement or collective bargaining agreement will be violated. In this case, you will have the punishment provided for in this document in case of lack of respect for your determinations.
In general, this punishment is the payment of a fine to the union representing the workers. The company can also be fined by the Ministry of Labor and Employment. If the company continues to violate the agreement, the employee or their union can take legal action to collect the differences.
Application of the agreement in case of dismissal
If a worker is laid off after the category base date and before the end of the class action, when the settlement is entered into, they may be entitled to a difference in their severance pay.
This is because, upon completion, values such as overtime and vacation and 13th were calculated using a lower salary than determined by the agreement. The payment of these differences is called supplemental termination .
Can the employee be fired in the month of a contract?
Nothing prevents a company from firing an employee close to the date of their agreement. However, the legislation offers guarantees to this worker.
According to Law No. 7,238, of October 29, 1984, the employee dismissed, without cause, in the period of 30 days before the date of his salary correction is entitled to an additional compensation equivalent to a monthly salary.
In addition, if the previous notice, worked or compensated, exceeds the month of the base date, all compensation payments must consider the amounts of the adjustment granted to your professional category.