The Federal Constitution (“FC”), the Consolidation of Labor Laws (“CLT”), and Law 605/1949 ensure workers a paid weekly rest period, “preferably on Sundays”.
However, the CLT authorizes work on Sundays and holidays on an exceptional basis, for reasons of public convenience or overriding service needs, subject to prior permission from the competent labor authority, assigning to the Ministry of Labor (or another agency that replaces it) to issue instructions specifying such activities.
Decree no. 27,048 of 08/12/1949 regulated the referred Law no. 605 of 05/01/1949, listing the activities with permanent authorization to work on Sundays and civil and religious holidays. The annex had, until then, seventy-two activities. The authorization to work on Sundays in other activities was subject to temporary authorization, justified case by case by technical needs.
There was a lot of criticism about this authorization granting system, mainly because the list of activities was 70 years old, i.e., it obviously no longer reflected the needs of today’s business and society.
Recently, the Ordinance of the Special Secretariat of Social Security and Labor – SEPREVT No. 604 of 06/18/2019, (“Ordinance 604 of 2019”), published in the edition of the Official Gazette of the Union (“DOU”) of 06/19/2019, came to try to expand, on a permanent basis, the list of activities with authorization to work on Sundays and holidays, including six more:
- Vegetable oil extraction industry and biodiesel industry, excluding office services;
- Industry of wine, grape must, vinegars and beverages derived from grapes and wine, excluding office services;
- Commerce in general;
- Establishments destined for tourism in general;
- Aerospace maintenance service;
- Aerospace industry.
However, the new Ordinance allows for some questioning that prevents its adoption with the necessary legal certainty.
Notwithstanding the discretionary power to issue administrative acts, the Executive Branch is obliged to comply with the constitutional and legal limits on those that are binding. However, the inclusion of the activities of “commerce in general” and “establishments for tourism in general” in a broad and generic way creates doubt as to the observance of these limits. Besides this, since it is a Ministerial Ordinance, it must observe all the legislation in effect on the subject it deals with.
It is still important to evaluate the technical requirements of the business, according to Law 605 of 5/01/1949, which remains in force. Decree 27,048 of 1949 defines as “technical requirements those that, due to public interest, or due to the conditions peculiar to the company’s activities or to the place where they are carried out, make it indispensable to the continuity of the work, in all or some of the respective services”.
Especially in relation to commerce in general, there is already specific legislation that authorizes work on Sundays, as long as the municipal legislation is observed, as well as prior authorization by collective bargaining agreement. This is Law No. 10.101 of 12/19/2000.
In view of the hierarchy of laws, the Ministerial Ordinance, because it is not a legal norm that overlaps with specific legislation, could not, in our opinion, bring the necessary legal security to the adoption of Sunday work for the new areas it contemplated.
A Bill is pending in Congress to convert MP881/2019 (no. 17/2019, approved by the Joint Commission), which amends the Law and the CLT, authorizing work on Sundays, indistinctly, provided that Sundays off is granted once a month.
The above text does not represent or replace a recommendation and is not exhaustive. DDSA will be available to guide its clients regarding the labor reform.