Uninterrupted rotating shifts – reduced working time at night

The TST’s SDI-I gave a reasonable interpretation to OJ 360 by understanding that a work shift that extends into the night period in just 35 minutes does not characterize the alternation of shifts for the purposes of applying the 6-hour working day limitation.

Subsection I Specialized in Individual Disputes (SDI-I) of the TST, responsible for standardizing labor jurisprudence, in a recent ruling, handed down in the records of case no. 0010427-89.2013.5.03.0164, removed the characterization of alternation between shifts when work performed by the employee is only 35 (thirty-five) minutes during the night.

The precedent is important because it makes the understanding previously adopted by the TST more flexible regarding the working hours limit applicable to employees subject to uninterrupted shift shifts.

The uninterrupted rotation shift is one in which the employee is activated at times that change successively, in continuous business activity. It is understood that such alternation of schedules is harmful to the worker, as it impacts their mental, physical and behavioral health (circadian cycle).

Therefore, art. 7th, XIV, of the Federal Constitution and Summary 423 of the TST provide that employees subject to uninterrupted rotating shifts must work a maximum working day of 6 (six) hours. Still according to these provisions, longer working hours can only be completed when negotiated with the professional union, under penalty of characterization, as overtime, of hours in excess of the 6th (sixth) day.

The same working hours limitation is extended, by OJ 360 of SDI-I of the TST, to employees subject to shift alternation, even if restricted to two work shifts, which comprise, in whole or in part, day and night hours. In other words, even if the change in schedules does not involve three work shifts, and the business activity is not continuous, it is understood that there is harm to the worker’s health that justifies the same protection.

And here lies the relevance of the decision recently handed down by SDI-I, since a reasonable interpretation was given to the section “in whole or in part” of the OJ mentioned to rule out the characterization of shift work when working hours enter the night period in just 35 minutes.

Said interpretation was based, among other points, on the fact that the night shift worked by the employee who filed the action would correspond to only 8.33% (eight point thirty-three percent) of the total night shift time and, thus, would not characterize alternation that is harmful to the worker’s health.

In so deciding, the TST’s SDI-I allowed employers to adopt, without the need for collective bargaining, the alternation of shifts with 8 (eight) hour working days that invade, in a few minutes, nighttime hours. This is, in our opinion, a balanced and reasonable solution for the specific case, since the dynamics of work often do not allow for the observance of British schedules while, on the other hand, the small extrapolation of the shift limit does not impose any real harm to employee health.

Therefore, it is expected that the other judicial bodies will apply this understanding to cases that may arise on this topic, adopting proportional and reasonable criteria in the evaluation of the topic.

Our team is available for any additional clarifications on the matter.

Contributed to this article: Douglas Uenohara, area partner, and Isabella Magano, partner