Do I need to work over Christmas and New Year? – 12/18/2023 – Market

The Christmas holidays (December 25, 2023) and Universal Fraternization Day (January 1, 2024) will not be changed by recent discussions about working on holidays.

With the suspension of the ordinance published by the government in November, the previous rule prevails until March 2024, when the new rule should come into force.

Until then, the category’s collective agreement must be followed and, if it does not exist, there are legal differences regarding the need for collective agreements for convocation.

Ricardo Patah, president of the SECSP (São Paulo Commerce Workers Union) and the UGT (General Workers Union), says that there is a well-established culture in Brazil of not opening commerce on December 25th and January 1st, in line with with most collective bargaining agreements. The exception is essential sectors, such as pharmaceuticals, for example.

Patah adds that, for 2024, until March is defined, holidays will be governed by collective agreements or, if there is no specific regulation, as determined by the 2021 ordinance.

The collective bargaining agreements drawn up in accordance with the SECSP for 2023/2024 are available at this link.

Sindilojas-SP (São Paulo Retail and Shopkeeper Union) states that there is no legal provision in a collective agreement that authorizes the opening of retail stores on the holidays of December 25th (Christmas) and January 1st (Universal Fraternization) .

For 2024, it points out that there are provisions in the union history that authorize and regulate the opening of businesses on Sundays and holidays.

“As a result, the new legislation does not interfere with the retail sector, since, for some time now, the Collective Agreement has allowed retail to work on holidays”, he states.

In the 2023/2024 Collective Labor Agreement for commercial workers in São Paulo, capital, in agreement with Sincovaga (food retail trade union), it is established that “work and the operation of companies are not permitted, except for services essential safety and maintenance requirements”, during the Christmas and Universal Celebration Day holidays.

Furthermore, an addition to this rule dated December 8th indicates that, exceptionally, on December 24th and 31st, 2023, companies in the sector will be able to call in traders who are on leave with their written agreement, as long as they are paid for the hours actually worked. with an additional 100% and grant two additional days off within up to two weeks, with a paid weekly rest period up to the seventh day worked and an additional day off for each day worked, 24 or 31, granted within two weeks.

The press office of the Associação Paulista de Supermercados (Apas) stated that “as this change in legislation has not yet happened, each supermarket will determine its operation according to the proposal to better serve consumers, always respecting collective agreements”.

In a note, he points out that it is a decision made by each establishment, but that for now there is no official position on the issue as there are still no changes compared to recent years.

Understand the discussion

In November, the government published ordinance 3,665/2023, making it difficult for employees to be called to work on holidays.

The resolution revoked Ordinance 671/2021, which ruled out the need for authorization in a Collective Labor Agreement for the call to take place, as explained by labor lawyer Cíntia Fernandes: “With Ordinance 3,665, the requirement for authorization through a Collective Labor Agreement returned or municipal law so that there could be work on holidays and Sundays.”

After strong reactions from commerce, ordinance 3,665/2023 was temporarily suspended, and its validity was established from March 2024.

Until then, a working table with representatives from employers, employees and the government was formed to negotiate the content of the recently published ordinance.

The result is that, for now, the rule prior to Ordinance 3,665/2023 prevails — but there are disagreements about what this rule would be, since the current Ministry of Labor and part of the courts see it as illegal, given the opposition to Law 10,101 /2000.

Fernandes explains that there is a judicial discussion on the topic, without a pacified understanding or uniform jurisprudence on the subject.

“We have, for example, decisions from TRT 8 this year now, recently, bringing the prevalence of ordinance 671 regarding Law 10,101/2000, highlighting that the law would be generic, general, and the ordinance would bring something specific, the jurisprudence in this sense. We also have other courts that have not applied ordinance 671, precisely based on law 10.101/2000.”

However, the lawyer highlights the importance of respecting the presence of the union, as collective norms are related to the preservation of workers’ rights, ensuring that working on holidays does not harm their health and well-being.

“The collective standard makes it possible to negotiate health protection measures, such as adequate work schedules, rest and meal breaks, in addition to adequate payment for the work carried out on those days.”

She also highlights that, when there is no union presence, it is common for workers to be afraid of refusing to work on holidays due to possible consequences of the decision, such as retaliation, loss of benefits or contractual termination.

“For workers, authorization in a collective standard is important precisely because of these issues related to their safety and health”, he says.

Clemente Ganz Lúcio, coordinator of the Forum of Union Centrals, considers ordinance 671/2021 illegal, justifying its replacement.

“From March onwards, there will be this new ordinance, which we want to do with the business sector. The objective now is precisely to provide the parameters for the implementation of work on holidays according to what we deem correct”, he states.

For Lúcio, there is a need to discuss points such as the authorization of essential sectors, so that there is no legal uncertainty, and union representation in regions without their presence.

Nilton Souza da Silva, representative of Força Sindical and president of the Trade Employees Union of Porto Alegre (Sindec-POA), points out that the Collective Agreement for the end of 2023 is already ready, at least in large capitals.

He reports that, at the working table, Força Sindical intends to request the maintenance of the ordinance as it is, without changes for the coming years, but that there are many capitals where there is a history of agreements regarding holidays — especially when it comes to the end of year.

“The big capitals have already been negotiating for many years, and Christmas and New Year are holidays that are not included in the discussion”, he says.