The Federal Supreme Court (Federal Supreme Court) upheld in full another article of the 2017 labor reform, maintaining the legitimacy of agreeing the “12×36” workday by individual agreement. By 7 votes to 3, the majority of the justices held that the rule was constitutional and voted in line with the dissent opened by Justice Gilmar Mendes, the dean of the Court. The judgment of the Declaratory Action of Unconstitutionality – ADI 5.994 ended on Friday (June 30).
It’s important to remember that for a long time, prior to the labor reform, the 12×36 workday was negotiated by the unions and thus provided for and regulated by Collective Labor Agreements, for example, the category of security guards and the category of janitorial and conservation workers.
According to the wording given to article 59-A, included in the Consolidation of Labor Laws (CLT) by the labor reform, the parties can, by individual written agreement, collective labor agreement or collective bargaining agreement, establish working hours of 12 hours followed by 36 uninterrupted hours of rest.
The article also provides that the monthly remuneration resulting from the “12×36” working day includes payments due for paid weekly rest and rest on public holidays, and that public holidays and extended night shifts will be considered offset.
The judgment was interrupted by Gilmar Mendes in April 2021 and has now returned in 2023. At the time, only the rapporteur at the time, retired Justice Marco Aurélio, had voted. In his opinion, the provisions are unconstitutional and the action should be upheld. In his opinion, there should be negotiation with the union, so the individual agreement, involving only employee and employer, would have no legal effect.
Gilmar Mendes was joined by Justices Dias Toffoli, Luiz Fux, Alexandre de Moraes, Cármen Lúcia, Luís Roberto Barroso and Nunes Marques. Rosa Weber and Edson Fachin voted with the rapporteur.
The decision shows that the Supreme Court has not substantially amended the wording of the labor reform approved by Congress, which substantially weakens the speculation at the beginning of this year about the possibility of a mini-labor reform. Of what has already been judged, the Federal Supreme Court has overturned few provisions and has brought interpretations on controversial points of certain articles of the Consolidation of Labor Laws, but without changing them.
The Declaratory Action of Unconstitutionality – ADI 5,994 was brought by the National Confederation of Health Workers, which argued that the agreement could not be individual, and that the participation of a trade union was essential, at the risk of making workers’ rights more flexible, especially those related to health protection.
If the 12×36 working day is chosen, the employee works 12 hours and has 36 hours off, i.e. one and a half days off for each day worked, observing the weekly paid rest, the wage floor for the category, defined by the Collective Labor Agreement, and the intra-day break.
The flexibilization of the working day to 12×36 does not offend the provisions of article 7, item XIII, of the Federal Constitution, because even if the employee works 12 hours, he/she will have one and a half days off and at the end of the week will have worked less than 44 hours a week, so there is no financial or health loss for the employee who works 12×36.
There is clearly no infraction in adopting such working hours for health professionals, there is no disrespect for occupational safety and health standards.
Thus, considering that contracting under these terms does not jeopardize the rights of health professionals, union negotiations are unnecessary to authorize the hiring of employees to work a 12×36 shift, and it is enough for the employee and employer to define the shift in the employment contract.
Mrs. Juliana Cerullo, (juliana.cerullo@ronaldomartins.adv.br), tel. (11) 99967-3638, Labor Area of RONALDO MARTINS & Advogados.
