TST overturns illegal withholding of tips in collective agreement

The 6th Panel considered the retention of the portion in a percentage higher than that provided for by law and without exclusive allocation for payment of social, labor or social security charges as an abusive measure. According to the panel, the action characterizes undue appropriation of remuneration.

Gilmar Afonso Rocha Júnior, a specialist in labor law and labor proceedings at Lara Martins Advogados, highlights the relevance of the TST decision for the application of current legislation.

“The relevance of the decision for workers who receive tips is that the established legal issue is guaranteed. The legislation came with the labor reform, the legal provision regarding the retention of tips by the employer, which includes a specific percentage ceiling for each purpose for which it will be used.

According to labor law specialist Aloísio Costa Junior, partner at the firm Ambiel Advogados, the measure puts an end to a problem with the application of the law that changed the CLT.

“The decision is important because it resolves an apparent confusion in the application of Law 3,419 of 2017, which amended the CLT to regulate issues regarding the payment and distribution of tips. This confusion occurs because this law states that the employer could retain, depending on their tax regime, from 20% to 33% of the value of tips to pay social, social security and labor charges,” highlights Aloísio Costa Junior.

Aloísio Costa Junior also highlights the role of the measure in the correct allocation and application of money from tips. “The importance here is to recognize that tips belong to the worker and should be used to benefit the worker, and neither the workers’ union nor the company itself can appropriate any amount in this regard.”

According to the expert, the general rules have not changed since the TST decision. “Nothing changes, because the legislation already provided for this issue; it simply corrected an abuse committed here in this specific case in Rio de Janeiro,” Aloísio points out.

Understand the case

A materials manager who worked at the Intercontinental Hoteleira Ltda. Hotel in Rio de Janeiro (RJ) from 1974 to 2010 filed a labor lawsuit against the company. The worker received a fixed salary and a variable salary – which came from tips paid by customers. According to the manager, only 30% of the salary was distributed to employees.

In its defense, the company highlighted that tips were compulsorily included in service charge invoices at a rate of 10%. In addition, 35% of the amount collected monthly was retained by the company and professional union – in accordance with collective bargaining agreements.

The first instance court and the TRT/RJ agreed that the percentage of tip retention was higher than the 33% provided for in the CLT. Furthermore, it exceeded the limits of collective bargaining. Therefore, the hotel in RJ must return the tips.