TST denies former employees of means of payment companies classification as bank employees

TST denies former employees of means of payment companies classification as bank employees.

The Superior Labor Court (TST) has refused to classify former employees of payment companies as bank employees. One of the most recent decisions, by the 4th Panel, benefits Stone. There are also precedents obtained by Cielo in two other panels - the 1st and 5th.

In their claims, former employees of these companies are defending the six-hour working day (30 hours a week), provided for in the Consolidation of Labor Laws (CLT) for bank employees, which would guarantee them overtime pay and reflections. In practice, their employment contracts would be governed by the collective bargaining agreement for bank employees, which is generally more advantageous.

For lawyers interviewed by Valor, these decisions are important for the means of payment sector. Often, they add, these companies end up being confused with financial institutions.

The case heard by the 4th Panel is Stone's first before the TST, according to Tatiana Malamud, the company's legal director. She says that the request to be classified as a banker is included in most of the labor lawsuits filed against the company, which is why the decision was unanimous.

In these lawsuits, Stone claims that it does not carry out operations typical of financial institutions - such as loans and financing. "A payment institution only manages payments, it's just providing services to facilitate these payments. It doesn't raise funds or make loans like a financial institution," says Tatiana.

She adds that the activities of means of payment companies are incompatible with those of financial institutions, due to an express legal prohibition. The sector, she says, is governed by Law No. 12,865 of 2013, which provides for payment arrangements and payment institutions that are part of the Brazilian Payment System (SPB), which prohibits them from acting in activities carried out by financial institutions.

In the 4th Panel, the ministers analyzed Stone's appeal. In her vote, the rapporteur, Justice Maria Cristina Peduzzi, emphasized that the TST's case law understands that credit, financing or investment companies are equivalent to banking establishments when it comes to defining working hours, as established by Precedent No. 55.

But in the case of Stone, she says, the activities carried out "qualify it as a payment institution, and the legal provisions and those established by collective bargaining agreement relating to banking and financial institutions do not apply" (case no. 0100753-34.2020.5.01.0026).

In another case judged by the 1st Panel in 2018, the ministers also understood that employees of means of payment companies cannot be classified as bank employees. In this case, they did not hear the appeal of a systems analyst who worked for Cielo.

The ex-employee had his request denied in all instances. According to the decision of the São Paulo Regional Labor Court (TRT-SP), upheld by the TST, as stated in the company's bylaws, Cielo is not a financial institution and the classification of the employee depends on the employer's preponderant activity.

The TRT-SP also points out in its ruling that the company's activities do not include the administration of credit cards and/or the granting of loans and financial transactions, but basically the supply of machines for payment with cards of various brands, acting as an intermediary between the customer, the establishment and the card administrator.

For the rapporteur of the case at the TST, Minister Hugo Carlos Scheuermann, the appeal only demonstrates the worker's dissatisfaction with the decision of the previous instances. "The Regional Court, sovereign in its examination of factual and probative matters, based on the company's bylaws, concluded that it is not a financial institution" (case no. 135900-34.2009.5.02.0203).

According to the lawyer who advised Cielo, Decio Sebastião Daidone Jr, a partner at Barcellos Tucunduva Advogados, we can already tell that there is a trend in the TST to deny these former employees the status of bank employees. However, not all of these appeals have been accepted by the TST, as a result of the transcendence filters. "That's why there are so few decisions," he says

The lawyer points out that Cielo is merely a payment intermediary. "The money doesn't come from the machine, but from the bank where the person has an account. The machine sends information to Visa, Mastercard, which sends information to the bank, which authorizes the credit," he says.

The issue, according to the lawyer, is similar to that already settled by the Individual Disputes Section (SDI-1). In 2017, the ministers ruled that banking correspondents should not be classified as bank employees (case no. 11266-31. 2013.5.03.0030). In this case, he adds, they are salespeople in retail chains who offer store cards. "These are related functions, but not identical to those of the employees of means of payment companies," he says.

The issue is new at the TST because the regulations are also new, from 2013 (Law No. 12.865), according to Tatiana Malamud. For this reason, cases are still beginning to be brought before the ministers. But in general, the Regional Labor Courts (TRTs) have ruled in favor of the companies. "In a few, such as Rio de Janeiro, the issue divides the judges, but the company [Stone] has achieved important results there too," she says.

When contacted by Valor, the defenses of the former Stone and Cielo employees preferred not to comment.