Brazilians contracted in Brazil and subsequently transferred to the outside have the rights guaranteed by Law 7.064 / 82, as well as those assured by the national labor protection legislation, when more favorable than the law of the implementation of the services. This was the understanding of the 11th class of the Regional Labor Court of the 2nd Region, which dismissed the ordinary resource of a large Brazilian airline.

The airline claimed that the employee had chosen to work and reside in Miami and that, therefore, the contract of work was suspended, since, from there, the company's internal policy standards followed. It also explained that the internal rules were drawn up before the gap in American law on labor precepts, but on the basis of the Constitution of the State of Florida and the United States of America, so that in the period in abroad, it would not apply to the contract national legislation.

According to the rapporteur of the judgment, Judge Eduardo de Azevedo Silva, the company was not right, since the author had been hired by Brazilian company to work in national territory and then transferred abroad. It was the case of amending the place of service provision, specifically the transfer provided for in art. 461 of CLT and art. 2º, Item I, of Law 7.064 / 82. This is because the employee continued to work for the same employer and under the same rules.

According to the judge, "the employer's own recognized the gap in North American law, as regards the rules of protection to work, which departs any doubt on the applicability of Brazilian legislation in the transfer period. TAM's international standards do not go beyond internal regulations, which obviously do not prevail over the Federal Constitution, CLT and other worker protection laws. "

Process nº 00013811420105020066