Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Holidays with Pay Convention (Revised), 1970 (No. 132) - Brazil (Ratification: 1998)

The Committee notes with interest the first three government reports, as well as the detailed information they contain. It requests additional information on the following points.

Article 2 of the Convention. Scope of application. The Committee notes that, by virtue of article 7, paragraph XVII, of the Constitution, urban and rural workers are entitled to an annual holiday with pay, the remuneration being at least a third higher than normal pay. However, section 7 of the Consolidation of Labour Laws (CLT), which contains detailed provisions on annual holidays with pay, excludes from its scope domestic workers, agricultural workers, public servants of the Union, the states, the municipalities and their respective officials who do not have tenure, as well as employees of autonomous parastatal administrative bodies governed by their own social protection scheme. Nevertheless, in the declaration accompanying its ratification of the Convention, the Government indicated that it accepted the obligations of the Convention, with regard to persons employed in all economic sectors, including agriculture. The Committee notes that, in its reports, the Government refers to Act No. 5859 of 11 December 1972 concerning domestic workers, according to which these workers are entitled to an annual holiday with pay. It requests the Government to transmit a copy of this document. The Committee also notes that the Government mentions the existence of additional laws governing the annual holidays with pay of certain categories of workers such as temporary workers and teaching staff. It requests the Government to specify the legal provisions guaranteeing an annual holiday with pay to those other workers excluded from the scope of the CLT and to transmit the relevant texts.

Article 3. Duration of annual holiday with pay - absence. The Committee notes that, under section 130 of the CLT, employees are entitled to an annual holiday with pay of 30 calendar days if they have been absent from work on no more than five occasions, 24 calendar days if they have been absent on between six and 14 occasions, 18 calendar days if they have been absent on between 15 and 23 occasions, and 12 calendar days if they have been absent on between 24 and 32 occasions. In its 2003 report, the Government specifies that, if the number of days of absence is higher than 32, the worker is not entitled to an annual holiday with pay. Whilst recalling that, under the terms of Article 3, paragraph 3, of the Convention, the holiday must in no case be less than three working weeks, that is 21 consecutive days, for a year of service, the Committee requests the Government to supply additional information on cases in which the duration of the annual holiday with pay of a worker may be reduced through the application of section 130 of the CLT.

Article 4. Proportionate holiday with pay. The Committee notes that, according to section 147 of the CLT, the employee is entitled, in the case of unfair dismissal, or if he/she has completed a fixed-term appointment, to remuneration corresponding to the holidays with pay not yet taken when the appointment was terminated before 12 months’ service had elapsed. It also notes that certain courts have decided that this provision should also be applied when dismissal is justified. The Committee wishes to stress that in any case compensation for holidays with pay that have not been taken cannot replace the granting of an actual rest period to the worker. It notes furthermore that, by virtue of section 140 of the CLT, workers recruited less than 12 months beforehand are entitled to a holiday with pay proportionate to the duration of their service, when the annual holiday with pay is granted collectively by the employer. The Committee expresses the hope that the Government will soon be able to extend the application of this provision, so that it also covers cases in which holidays with pay are taken by each worker individually. As the Committee stressed in its 1984 General Survey on working time (paragraph 249), this is an important issue "given the large numbers of workers who, whether voluntarily or not, are employed for less than the normal working hours per year (part-time workers, workers recruited through temporary employment agencies, seasonal workers, workers whose employment relationship begins during the course of the qualifying year, etc.)".

Article 5, paragraphs 1 to 3. Minimum period of service. The Committee notes that, by virtue of section 130 of the CLT, the employee is entitled to an annual holiday with pay every 12 months after the entry into force of the appointment. It notes, however, that the Government indicates in its reports that a period of actual work of at least six months is required before the worker is entitled to an annual holiday with pay. The Committee requests the Government to supply more information on the issue of the minimum applicable period of service (six or 12 months) and to indicate by virtue of which provision at least six months of actual work are required in order to be entitled to an annual holiday with pay.

Article 5, paragraph 4. Period of service - absence from work for reasons beyond the control of the worker. The Committee notes that, by virtue of section 133 of the CLT, employees who during the period in which they are acquiring the entitlement to holidays with pay, receive social insurance benefits due to an occupational accident or an illness for more than six months, even with interruptions, are not entitled to annual holidays with pay. The Committee draws the Government’s attention to the fact that the Convention states that, under conditions to be determined by the competent national authority, absence from work for such reasons beyond the control of the employed person concerned as illness or injury must be counted as part of the period of service required for entitlement to any annual holiday with pay. It requests the Government to supply information on the application of section 133 of the CLT in practice.

Article 6, paragraph 2. Incapacity for work. The Committee notes that, by virtue of section 130(1) of the CLT, periods of absence from work may not be counted as part of the holiday with pay. It also notes that, in its 2002 and 2003 reports, the Government indicated that the holiday with pay is neither interrupted nor suspended in the case of sickness arising during the holiday period. The Committee draws the Government’s attention to the fact that, according to Article 6, paragraph 2, of the Convention, under conditions to be determined by the competent national authority, periods of incapacity for work resulting from sickness or injury may not be counted as part of the minimum annual holiday prescribed by the Convention. This provision is applied without distinction in cases in which incapacity for work arose before or during the holiday with pay. The Committee requests the Government to indicate the measures taken or envisaged to ensure the application of this provision in both these hypotheses.

Article 8, paragraph 2. Division of the annual holiday with pay. The Committee notes that section 134(1) of the CLT allows, under exceptional circumstances, the division of the annual holiday with pay into two parts, one of which may not be less than ten calendar days. Section 139(1) establishes the same rule in the case of annual collective holidays with pay. However, according to the Convention, in the case of division of the holiday with pay, one of the parts must consist of at least two uninterrupted working weeks, that is 14 calendar days, unless agreed otherwise as a part of an agreement between the employer and the employed person concerned. The Committee requests the Government to indicate the measures taken or envisaged in order to ensure that section 134(1) of the CLT is fully in accordance with the provisions of the Convention on this matter.

Article 10. The time at which the holiday is to be taken. The Committee notes that, with certain exceptions with regard to the members of the same family working in the same enterprise and for students under the age of 18, the time at which the holiday is to be taken must be that which best corresponds to the interests of the employer (section 136 of the CLT). It draws the Government’s attention to the fact that, when the employer is determining the time at which the holiday is to be taken, he/she must do so following consultations with the person concerned or that person’s representatives. Moreover, the employer must take into account, not only the demands of work but also the possibilities of rest and relaxation offered to the employed person. The Committee requests the Government to indicate how compliance with this provision is ensured in practice.

Article 12. Relinquishment of the right to the annual holiday with pay. The Committee notes that section 143 of the CLT allows an employee to request that the equivalent of a third of the holiday with pay to which he/she is entitled be granted in cash. However, by virtue of Article 12 of the Convention, any agreement to relinquish the right to the minimum annual holiday with pay prescribed by the Convention (three weeks) is null and void or must be prohibited. The Committee requests the Government to indicate the measures taken or envisaged to ensure that the worker benefits, in all cases, from an annual holiday with pay of at least three weeks which he/she may not relinquish in exchange for payment.

Part V of the report form. The Committee notes with interest the detailed information transmitted by the Government in its reports, and in particular the statistics and texts of court rulings directly applying the provisions of the Convention. It requests the Government to continue to supply general indications on the manner in which the Convention is applied in practice.

In general, the Committee notes that, in its 2003 report, the Government stated its intention to review the labour legislation with the social partners, within the framework of the National Labour Forum, in order to submit proposals to the National Congress with a view, in particular, to bringing the legislation into line with the Convention. It requests the Government to keep it informed of any progress made on the issue.