A vedação à cumulação dos adicionais de insalubridade e periculosidade segundo o art. 193, § 2º, da CLT, e o processo nº TSTIRR-239-55.2011.5.02.0319: uma análise à luz dos princípios da dignidade da pessoa humana e da saúde do trabalhador

Abstract

This article analyzed the prohibition of combining the hazard pay and danger pay allowances, as provided in Article 193, § 2, of the Consolidation of Labor Laws (CLT), and the legal thesis established by the Superior Labor Court (TST) in the Repetitive Appeal Incident (IRR) No. TST-IRR-239-55.2011.5.02.0319. The central objective was to understand the relationship of this prohibition with the constitutional principles of human dignity and the protection of workers’ health, as well as the influence of international standards, such as ILO Conventions No. 148 and 155. The study used bibliographic and documentary methodology, with a qualitative approach and deductive method, starting from general premises of fundamental rights to analyze the specific norm and the current jurisprudence. The research showed that the prohibition of accumulation, by forcing workers exposed to risks of different natures (hazardous and dangerous conditions) to choose only one allowance, contradicts the full effectiveness of social rights and the principle of full compensation. The TST, by settling the understanding on the impossibility of accumulation, based its reasoning on the literal wording of Article 7, XXIII, of the Federal Constitution ("or") and on the prohibition of double compensation for the employee, disregarding the autonomy of the risk-generating events. It was concluded that maintaining the alternative allowance thesis weakens the protective system, as it relieves the employer from compensating for all the risks and reduces the incentive to invest in a safe and healthy work environment, in disagreement with the spirit of international norms and constitutional mandates.