Hours in itinere (or commuting hours) consist of the company’s obligation to compute the time it takes its employee to get to work as hours actually worked, in situations where the employer provides transportation and the workplace is difficult to reach or not served by public transportation.
This rule was first dealt with through Precedent 90 of the TST, and later inserted into the CLT through paragraph 2 of article 58, being used for both urban and rural workers, until the entry into force of Law 13.467/2017, also known as the “labor reform”, which substantially changed the wording of paragraph 2 of article 58 of the CLT, leading to the understanding of a complete exclusion of commuting hours.
The labor reform brought many changes, leading the Superior Labor Court to recognize the need to standardize the understanding of which employment contracts would be affected by these changes. It even addressed whether the reform would be valid for employment contracts that already existed before it came into force.
–> Learn more about the topic: Retroactivity of the labor reform on existing employment contracts
However, when it comes to rural workers’ hours in itinere, the discussion raises even deeper questions than the issue currently being debated by the TST. In view of the fact that, depending on the outcome of the judgment by the TST, the changes implemented by the labor reform could be applied only to employment contracts that began after November 2017, and would not be valid for employment contracts that were already in progress.
However, in the specific case of rural workers, commuting hours may be due even for contracts that began after the labor reform, in this sense the decision (not yet final) of the Incident of Resolution of Repetitive Demands (Theme 27) before the Regional Labor Court of the 15th Region – Campinas, which understood that the new wording of paragraph 2 of art. 58 of the Consolidated Labor Laws (CLT) would be restricted to places with easy access, and hours in itinere would still be due for places with difficult access or without public transport, such as the vast majority of rural properties.
Similarly, other Regional Labor Courts have ruled that hours in itinere are mandatory for rural workers, even for contracts started after the labor reform, on the grounds that the CLT, and consequently the new wording of art. 58, would not apply to this category, and that Law 5.889/73, which was created specifically to regulate rural labor relations, should apply, even though there is no provision for hours in itinere in its articles.
The current scenario involving rural workers’ commuting hours further reinforces the legal uncertainty surrounding the immediate application of the changes brought about by the labor reform, especially with regard to the rights that have been suppressed by it, highlighting the need for strategic legal action when employers make decisions.
However, it is important to note that with the judgment of Theme 1.046 by the STF, the validity of a collective bargaining agreement that limits or restricts a labor right that is not constitutionally guaranteed was recognized, in other words, for a large part of the Courts, it is possible to change or suppress the payment of hours in itinere through collective bargaining, reinforcing the latent need to invest in relations between employers and unions in current times.
If you have any questions on the subject, our labor team is at your disposal.
