Women’s right to fortnightly off on Sundays reaches the Supreme Court

In the Ten Commandments (the biblical text, not the TV Record soap opera), the order is to “keep Sundays”, but in the labor market, the law is different: you cannot always choose the days “saved” for rest.

Provided for by the CLT (Consolidation of Labor Laws), the main regulatory compendium of labor relations, work on Sundays has become the rule in shopping malls, supermarkets and commercial areas of large cities, since the day is relevant for consumption, although the legislation recommends that the weekly day off coincides with that day.

For women, however, the 1943 decree-law defines the right to fortnightly rotation: at least one Sunday every two weeks must be a day off. But in practice it is not like that.

In recent years, dozens of lawsuits have reached the Labor Judiciary discussing the application of Article 386 of the CLT and possible conflicts with Law 10.101/2000, which allowed work on Sundays in commerce.

Only the Trade Union of Florianópolis initiated 42 lawsuits against large retail chains and supermarkets, since 2016, to demand compliance with the so-called scale 1 by 1 – a weekend of work followed by a weekend off.

The practice in Santa Catarina, according to the director of the Federation of Commerce Workers in Santa Catarina, Ivo Castanheira, is a 2 for 1 scale (one day off every two Sundays worked). In some municipalities, he says, employees have been without a collective agreement for about four years because companies do not accept providing mandatory rotation for women.

Minister of the Supreme Court ruled in favor of biweekly leave

Now, one of these cases has begun to be decided by the Federal Supreme Court and is seen by lawyers as an important precedent, despite not having general repercussions (classification that guarantees the application of the decision to all cases that discuss the subject),

In October, in a monocratic decision (when only one minister decides), Supreme Minister Cármen Lúcia determined that Riachuelo stores have to respect the fortnightly day off of their employees, in the judgment of an extraordinary appeal presented by the chain.

Riachuelo tries to reverse the decision of Subsection 1 Specialized in Individual Disputes of the TST (Superior Labor Court), in an action initiated by the Commerce Workers Union of São José (SC), which asks the trade workers to take time off.

After Cármen Lúcia’s decision, the case began to be judged in a virtual plenary, in which Minister Alexandre de Moraes followed the minister’s vote. Minister Luiz Fux asked for a view, pausing the analysis of the case.

But Cármen Lúcia’s monocratic decision was enough to trigger new actions, says lawyer Meilliane Pinheiro Vilar Lima, from LBS Advogados. Trade unions from Espírito Santo also went to the Labor Court against eight chains, most of them with stores in malls, where work on Sundays is more widespread.

At the TST, another action by the Santa Catarina union, this one against the Renner stores, was also judged in favor of the workers and should also go up to the STF, since there was an extraordinary appeal in this case as well.

Meilliane Lima, who represented the union at the TST, considers that the STF decision could be used in any activities involving work on Sundays. For the lawyer, the fortnightly rotation cannot be negotiated in agreements and collective agreements because it is an unavailable right (those on which there is no negotiation, such as the right to life, freedom, health, etc.).

São Paulo Commerce Federation defends negotiations with unions

In São Paulo, for example, several collective agreements provide that stores can decide the type of relay to be applied. The current agreement for the years 2022 and 2023 signed between FecomercioSP and the Commerce Workers Union provides for three possibilities: the 1 by 1 system, the 2 by 1 (one day off every two Sundays at work) and the 2 by 2 (two work followed by two off).

FecomercioSP negotiates with labor unions in the capital and also in Osasco, Franco da Rocha, Cotia and Guarulhos, all in Greater São Paulo.

FecomercioSP’s legal advisor, Delano Coimbra, says he believes that the Supreme Court’s decision will not have an effect on future agreements precisely because of the device known as the “negotiated on the legislated”, that is, even if there is a law providing for another type of rule, the Unions can reach other terms as long as the final result does not violate the Constitution.

“The unions understood that Sundays, especially for those who work in malls, are the best days for sales, which is very good for those who receive commissions. What is prevailing in these agreements is her option [a trabalhadora]she decides whether to work or not.”

The lawyer Mariazinha Campanhim, who represents the employees of the commerce of Florianópolis, disagrees. “Sundays off are a women’s demand and a large number of those who work on Sundays are in supermarkets, where there is no commission.”

Lawyer Meilliane Lima also argues that the mandatory relay is still necessary, since, since 1943, the year of publication of the CLT, social advances have not been enough for women and men to live in equality.

“On average, 40% of families are single-parent and headed by women. The State does not offer social protection, there is no day care on Sundays. So this is still an essential day for her to rest, have family life.”

What the stores say

Renner, Riachuelo and IDV (Institute for the Development of Retail) were approached to talk about the matter, but did not respond.

In the appeal it filed with the STF, Riachuelo argued that granting women a fortnightly day off violates the Constitution as it is discriminatory.

The defense of the retail chain states that “art. 386 of the Consolidated Legislation treats women indefinitely as an inferior being, who would need, unlike men, rest on Sundays every 15 days.”

In another part of the appeal, it states that “by treating women as an inferior being, who need perks, the discriminatory bias is flagrantly presented, leaving no doubt about their non-reception by the constitutional order.”

Another argument of the network is that other models of rotation are provided for in law 10.101/2000, according to which paid weekly rest needs to coincide with Sundays only once every three weeks.

In the same process, the IDV asked to be admitted as amicus curiae (friends of the Court, when someone who is not a party to the action asks to participate and also presents a statement) and stated that the case could have “impacts for all sectors, in particular retail, are indisputable.”