Clause XIII of Article 7 of the Constitution does not prohibit working 12-hour days with 36-hour rest. The device only proves that a working day of eight hours a day or 44 hours a week can be proportional by compensation, according to a collective agreement or bargaining. In the 12 x 36 model, four extra hours of daily work are compensated for by a greater number of consecutive hours of rest.
Based on this understanding, the Plenary Session of the Federal Supreme Court ratified Article 59-A of the Penal Code, which was submitted by repair work 2017, which allows the adoption of a 12 x 36 working day by individual agreement, collective agreement or collective agreement. The virtual trial ended last Friday (6/30).
The National Confederation of Health Workers (CNTS) challenged the rule through direct action as unconstitutional. According to the entity, the text of the reform violates the thirteenth clause of Article 7 of the constitution, which does not indicate the possibility of reaching an individual agreement. The author also argued that the adoption of a continuous shift system could not be agreed upon without the involvement of trade unions.
The majority of the congregation followed the vote of Minister Gilmar Mendez. He considered it “natural” for the reform to standardize the 12 x 36 working day in the statutory labor law and allow its adoption through an individual contract “on the basis of the worker’s freedom.”
The judge noted that this model is already widely accepted in jurisprudence. Prior to the reform, precedent 444 of the Supreme Labor Court validated 12 x 36 days on an exceptional basis, if so provided by law or modified in collective bargaining. In addition, the STF has already allowed the requirement for this trip for civilian firefighters.
The minister pointed out that “I do not see any violation of the constitution in a law that allows the employee and the employer, under an individual contract, to determine the working hours that are already widely used among us and recognized in jurisprudence and approved by specific laws for certain professions.”
The purpose of the repair
For Gilmar, “the various changes proposed by labor reform reunite labor law with its own origins, bringing autonomy to a prominent place, without prejudice, logically, to the protection of human dignity”.
The minister stressed that reform is the answer found by Congress to “move forward in the formation between protecting work and preserving the free enterprise,” within the framework of “exercising its cognitive and structural discretion.”
The idea of the reform’s framers was to ensure greater flexibility in employment in order to try to lower the unemployment rate. According to the judge, Article 7 of the constitution “has no life of its own” because it “relies on its factual support: action.” In other words, “Without work, there is no mention of rights or guarantees of work” and “All this would be doomed to empty.”
Gilmar’s vote was accompanied by Ministers Dias Toffoli, Alexandre de Morais, Luiz Vaux, Casio Nunes Marquez, Luis Roberto Barroso and Carmen Lucia.
Understanding is over
Minister Marco Aurelio, rapporteur of the case, cast his vote before his retirement, which took place in 2021. He considered the possibility of adopting the 12 x 36 flight by individual agreement unconstitutional. He was accompanied by Ministers Louis Edson Faschen and Rosa Weber.
Marco Aurelio noted that the constitution allows for the compensation of hours and the reduction of the eight hours in the day through a collective agreement or agreement, but that he “does not think of the individual agreement”.
For him, “the contempt for constitutional dictates was great,” because “labor reform promoted the end to the detriment of the means, and put the concept of law into the background.”
Click here to read Gilmar’s vote
Click here to read Marcus Aurelius’ vote
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