All Souls’ Day, celebrated this Wednesday (2), is a national holiday and guarantees the right to paid rest for most workers in the country. There are, however, categories that are considered essential and are allowed to work.
By law, the professional who works on holidays is entitled to receive double overtime, but the company may, instead of making the payment, grant time off on another day of the week or include the extra hours in the hour bank, as long as that the rule is under negotiation between employees and employers.
The rule that defines the rights of professionals who have a formal contract are in article 67 of the CLT (Consolidation of Labor Laws), which determines paid weekly rest of 24 hours a week, preferably on Sundays or part of it.
The exception is in the essential categories, which may have a different rule. There is a list of 122 categories authorized to work on Sundays and holidays, according to the federal government decree published in November 2021.
According to lawyer Eduardo Pragmácio Filho, PhD in labor law and partner at Furtado Pragmácio Advogados, among the essential categories are the operational sectors of electric energy, sewage and water distribution, steel, food trade and public transport, among others. “Usually they are so-called essential activities, which cannot stop.”
Pragmácio Filho says that, if there is no agreement or convention on the subject, the employer cannot require the employee to work. If there is an agreement, the summoned worker cannot miss, under penalty of having the day discounted.
“First, the employee needs to be scheduled. If he does not show up, he will be absent and will miss the working day plus one day of paid weekly rest, and may even, depending on the recurrence and severity, suffer suspension or just cause” , says.
Professionals who work 12-hour shifts for 36 hours are outside the rules for paid holiday breaks.
WORKER CAN GO TO COURT IF NOT COMPENSATED
The worker who does not have any type of compensation after working on a holiday, such as double overtime, time off or bank of hours, can seek the Labor Court. According to experts, this is a violation of legislation.
For that, you need evidence. Among those that are valid in court are the time cards. Testimonials from colleagues may also be used in an eventual process, in addition to photographs and other documents that may prove non-compliance with the legislation.
The guideline, however, is to negotiate. For lawyer Maurício Pepe De Lion, from Felsberg Advogados, the best way is to talk. “Trying to negotiate is the best way. If there was any disagreement regarding just one day, a labor action should not be proposed”, he says.