O desvirtuamento da finalidade normativa da compensação de jornada: os problemas da equivalência na compensação do banco de horas e da sua implementação por acordo individual

Abstract

This study aims to analyze the agreements between workers and employers regarding compensation plans for working hours—the working hours bank—provided for in the Brazilian Constitution. The Constitution establishes a maximum working hour limit of eight hours per day and forty-four per week and grants workers a 50% bonus for each hour worked if these limits are exceeded. However, it does not set clear rules for agreements allowing workers and employers to exchange the 50% bonus for a reduction in working hours at a future date—the working hours bank. In the absence of such rules, these agreements were defined as a 1:1 ratio, meaning each overtime hour is compensated by one hour less later, raising questions about compliance with the constitutional 50% bonus rule. With this question in mind, the research examines the historical evolution of the working day and the time bank, their legal nature, and the changes introduced by ordinary legislation, particularly the 2017 Labor Reform, which authorized individual employee-employer agreements. One of the first issues identified was employees’ fragility in negotiating with employers, followed by the realization that such agreements transfer business risks from their holders to employees, contradicting the logic of Labor Law, the exceptional nature of overtime, and the requirement of collective bargaining for validity. Methodologically, the research is diagnostic and propositional, adopting dogmatic and sociological approaches supported by analyses of the Constitution, legal instruments, labor jurisprudence, and judicial decisions. The investigation demonstrates that the 1:1 compensation provided for in individual agreements is incompatible with the Constitution, as it violates the normative framework for labor protection and the separation of powers, given its fragile normative origins, based on repeatedly reissued provisional measures. Finally, alternative proposals are presented to ensure minimum constitutional compliance with the time bank system, such as the mandatory 50% bonus even in compensatory schemes, the requirement of collective bargaining as essential, the nullity of agreements in cases of habitual overtime, and the need for transparency, unequivocal knowledge, and express worker consent. The conclusion is that only by observing these parameters can the time bank align with constitutional labor protection principles, preserving the balance between productive interests and workers’ dignity.