Brazil: MTE Ordinance (Portaria) 945 Regarding Work On Sundays And Public Holidays

Ordinance 945 of the Ministry of Labour and Employment (MTE) has established a new method of temporary authorization for work on Sundays and public holidays, in the form of a specific collective agreement (ACT) entered into between a company and the trade union representing the relevant category of worker. The earlier method, a concession granted by the MTE, remains in force, subject to the conditions expressly set out in the legal text discussed below.

Accordingly, as a result of the said Ordinance, there now exist two forms of temporary authorization, one with direct state intervention and the other with indirect intervention, since, although the conditions of the agreement can be negotiated between the parties, there exist certain minimum provisions that must be observed and such instrument, in order to be valid, must be registered in the so-called "mediator" system, thereby permitting the MTE to interfere, if necessary.

Prior to signing of the agreement, the parties must analyze the history of the company's compliance with the labour legislation (by means of access to the appropriate certificates issued by the MTE) and the rates of incidence or gravity of any work-related illness and accidents in relation to the profile of the economic sector to which the employer belongs (by accessing information produced by the Social Welfare Ministry).

The conditions mentioned in the preceding paragraph having been analyzed and the parties having concluded that the collective agreement is suitable to establish the temporary authorization, the instrument must necessarily contain:

a) Schedule of shifts to be defined, in consensus with the trade union;

b) Term of agreement for carrying out work on the said non-business days;

c) Specific work-related health and safety conditions for insalubrious and dangerous activities;

d) Effects of the ACT in the event of cancellation of the temporary authorization.

Apart from the obligatory minimum provisions set out above, the union may impose special conditions for signing the agreement, such as complementary employment guarantees, enhanced social benefits, increased percentages on overtime, among others.

Registration of the agreement brings about the immediate temporary authorization for work.

The authorization stated in the agreement shall terminate i) on expiry of the term of the ACT, ii) on rescission of the agreement between the parties.

There is nothing to prevent the authorization from being cancelled at any moment by the MTE, after hearing the company, by means of a reasoned order based on an inspection report, provided it reveals i) non-compliance with the ACT, ii) failure to meet the requirements of the Ordinance, iii) repeated breach of rules relating to the working day and rest periods, iv) attainment by the company of a rate of incidence or gravity of work-related illness and accidents higher than that of the profile of the economic sector to which it belongs.

In order to obtain authorization, valid for up to two years, granted by the MTE for work on Sundays and public holidays, the company must produce the following documents:

a) a technical report, valid for four years, from a Federal, State or Municipal institution, showing the technical need and the sectors that require continuity of work,

b) shift schedule providing at least one day off on a Sunday every three weeks,

c) evidence of communication to the trade union, at least 15 days prior to the application to the MTE, regarding authorization for work on Sundays and public holidays, and finally,

d) reply from the trade union within 15 days, if any.

Note that the Ordinance allows the union to lodge its objection to the application for the grant of authorization to work on Sundays and public holidays directly with the MTE, without sending it to the company making the application.

Before granting the authorization the MTE will consider whether any formal complaints have been made against the company for failure to observe maximum working hours and for disregarding statutory rest periods, as well as the rate of incidence or gravity of work-related illness and accidents in relation to the average level for the relevant economic sector.

The events leading to cancellation of this method of granting authorization are the same as those for the cancellation of authorization granted by a collective agreement referred to above.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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