Working on Sundays and public holidays

The Ministry of Labor and Employment (MTE) published, on the 14th, MTE Ordinance No. 3,665/23, which revokes permanent authorization to work on Sundays and holidays, provided for in Ordinance No. 671/21 of the former Ministry of Labor and Social Security (MTP), for the following activities:

1. fish retailers;
2. fresh meat and game retailers;
3. fruit and vegetable retailers;
4. poultry and egg retailers;
5. pharmaceutical product retailers (pharmacies, including prescription compounding);
6. markets, retail trade in supermarkets and hypermarkets;
7. trade in regional articles in hydromineral resorts;
8. trade in ports, airports, roads, bus and railway stations;
9. trade in hotels;
10. trade in general;
11. wholesalers and distributors of industrialized products;
12. revendedores de tratores, caminhões, automóveis e veículos similares; is
13. retail trade in general.

As has been widely reported in the media, the main effect of the new Ordinance would be that the operation on Sundays and holidays of the commercial activities regulated by it would depend on specific authorization in a Collective Labor Agreement.

It should be noted, however, that the provisions of Law 10,101/2000 remain in force, which, in its art. 6th of Law No. 10,101/00 grants permanent authorization to work on Sundays in commercial activities in general, in compliance with municipal legislation. Regarding work on holidays, the aforementioned law, in its art. 6-A, grants permission to work in commerce in general, as long as two requirements are met: authorization in a collective labor agreement and compliance with municipal legislation.

Treating the aforementioned legal provisions as rules intended for commercial activities (specific standard) and contained in federal law (higher hierarchy standard), it would be defensible to understand that their provisions would prevail over those set out in Ordinance No. 671/21 of the MTP.

It is worth remembering that the TST, through its Subsection I Specialized in Individual Disputes, has already taken a position on some occasions in the sense that permanent authorization granted to certain branches of commerce to operate on Sundays and holidays, previously through Decree 27.048/ 49 (repealed by Decree No. 10,854/21) and currently by Ordinance No. 671/2021, does not remove the obligation to comply with the requirements set out in Law No. 10,101/00[1].

Thus, applying this understanding, it would be possible to reach the following conclusions:

10. Work on Sundays in commercial activities in general has permanent authorization, regardless of specific provisions in Ordinance No. 671/21 of the MTP, the only requirement being compliance with municipal legislation and the applicable collective norm, pursuant to art. 6th of Law No. 10,101/00;
11. Work on holidays in general commercial activities depends on authorization in a Collective Agreement and compliance with municipal legislation, pursuant to art. 6th-A of Law No. 10,101/00.

It is also worth highlighting that the literalness of the aforementioned art. 6-A does not prevent, in our opinion, obtaining authorization to work on holidays by Collective Labor Agreement, pursuant to arts. 7º, XVI, 8º, III e VI, da Constituição Federal[2], 611-A, caput, e 620 da CLT[3].

However, given the uproar created around the issue, the MTE announced in a press conference held yesterday (11/22/23) that it will issue a new Ordinance on commercial work on holidays[4] effective from 03/01/2024.

According to the note, the new Ordinance will only deal with the opening of commerce on holidays, since, in the Minister’s understanding, the opening of commerce on Sundays would already be defined by Law No. 10,101/00.

In any case, it is undeniable that MTE Ordinance No. 3,665/23 and its impacts will still be the subject of extensive discussion, and it is imperative to monitor its developments and consolidate understanding at the administrative and judicial levels for the eventual adjustment of labor practices.

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

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

[1] E-ED-RR – 833-59.2012.5.15.009; E-ED-RR-966-77.2010.5.03.0074; E-ED-ED-RR-266-67.2012.5.04.0571; Ag-RO-22061-23.2017.5.04.0000

[2] https://www.gov.br/trabalho-e-emprego/pt-br/noticias-e-conteudo/2023/novembro/ministerio-do-trabalho-e-emprego-revoga-portaria-no-3-665-sobre-trabalho-aos-feriados

[1] E-ED-RR – 833-59.2012.5.15.009; E-ED-RR-966-77.2010.5.03.0074; E-ED-ED-RR-266-67.2012.5.04.0571; Ag-RO-22061-23.2017.5.04.0000.

[2] Art. 7 The rights of urban and rural workers, in addition to others aimed at improving their social condition, are: […] XXVI – recognition of collective work conventions and agreements; […]

Art. 8 Professional or trade union associations are free, subject to the following:[…] III – the union is responsible for defending the collective or individual rights and interests of the category, including in judicial or administrative matters; […] VI – the participation of unions in collective labor negotiations is mandatory; (Federal Constitution)

[3] Art. 611-A. The collective convention and the collective work agreement prevail over the law when, among others, they provide for: […]

Art. 620. The conditions established in a collective work agreement will always prevail over those stipulated in a collective work agreement. (CLT)

[4] https://www.gov.br/trabalho-e-emprego/pt-br/noticias-e-conteudo/2023/novembro/ministerio-do-trabalho-e-emprego-revoga-portaria-no-3-665-sobre-trabalho-aos-feriados