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

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Articles 3(3), 5(2), 8(2) and 10 of the Convention. Annual holiday with pay – Implementing measures. The Committee recalls its previous comment, in which it noted that numerous provisions of the Convention are not given full effect by the Consolidation of Labour Laws (CLT) and that little tangible progress appears to have been made since 2003, when the Government had indicated its intention to review its labour legislation through a National Labour Forum. In its latest report, the Government does not provide any further information on measures taken with regard to most of these points. The Committee is therefore obliged to draw the Government’s attention once more to the aspects of the Convention that do not appear to be fully implemented: (i) unjustified absences may be deducted from the minimum qualifying period of service giving entitlement to holidays but should not affect the duration of annual holidays (Article 3(3)); (ii) the minimum period of service required for entitlement to annual holidays should not in any case exceed six months (Article 5(2)); (iii) when divided into parts, one part of the holiday period should consist of at least two uninterrupted working weeks (Article 8(2)); and (iv) the employed persons concerned or their representatives should be consulted before the timing of holidays is determined (Article 10). In the absence of any new developments, the Committee hopes that the Government will take active steps in order to bring the national legislation fully into conformity with the requirements of the Convention.

Article 6(2). Incapacity for work due to sickness or injury not to be counted as part of the annual leave. The Committee notes that, contrary to the Government’s previous statement that section 130(1) of the CLT – providing that periods of absence from work may not be counted as part of the holiday – should be considered as repealed, the Government’s latest report indicates that section 130(1) should not be repealed as it is favourable to the worker. However, the Committee also recalls the information provided by the Government in an earlier report that holidays with pay are neither interrupted nor suspended in the case of sickness arising during the holiday period. The Committee accordingly requests the Government to provide further clarifications in this respect.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 2 of the Convention. Scope of application. The Committee notes the legislative texts provided by the Government which establish the right to annual holidays with pay for workers excluded from the scope of application of the Consolidation of Labour Laws (CLT), whose annual leave is governed by special legislation, namely: domestic workers (Act No. 11.324 of 19 July 2006, amending Act No. 5.895 of 11 December 1972 respecting domestic workers) and temporary workers (Act No. 6.019 of 3 January 1974 and Decree No. 73841 of 13 March 1974 respecting temporary work). With regard to rural workers, the Committee notes that, under the terms of section 4 of Decree No. 73.626/1974 of 13 February 1974, their annual holidays with pay are governed by the CLT (sections 129–144).

Article 3, paragraph 3. Duration of annual holidays with pay. Absences. The Committee notes the Government’s indication that the duration of annual holidays with pay depends on the regular attendance of the worker and unjustified absences are deducted from both the period of minimum service giving entitlement to the holiday and the duration of annual holidays with pay. In this respect, the Committee refers to paragraph 201 of its General Survey of 1964 on annual holidays with pay in which it considered that “the two questions, that of unjustified absence and of holidays with pay, should be dealt with separately – except, of course, as regards the effect of such absence on the qualifying period of service”. In other words, although the deduction of unjustified absences from the minimum qualifying period of service giving entitlement to the holiday does not seem to be in contravention of the express provisions of the Convention, there should be no deduction from the annual holidays, the duration of which should in no case be less than three working weeks for one year of service in accordance with Article 3(3) of the Convention. The Committee therefore requests the Government to indicate the measures adopted or envisaged in order to bring the legislation into conformity with the letter and the spirit of the Convention.

Article 4. Proportionate holiday. Further to its previous comment concerning section 147 of the CLT, the Committee notes the Government’s reference to ruling No. 121/2003 of the Higher Labour Court, amending Order No. 261 and granting workers the right to proportionate leave when they are dismissed without valid reason or the employment relationship is terminated at the end of a specific period, without having completed the period of minimum service giving entitlement to the holiday. It also notes that this court decision excludes workers who are dismissed for a valid reason from the right to proportionate leave. The Committee recalls, in this regard, that Article 4 of the Convention provides for the granting of proportionate leave to any person whose length of service is less than that required for entitlement to the full period of holiday, namely three weeks. Accordingly, and in the absence of legislative provisions to that effect, the Committee requests the Government to indicate the measures adopted or envisaged in order to bring section 147 of the CLT into full conformity with this provision of the Convention.

Article 5, paragraphs 1, 2 and 3. Minimum period of service. The Committee notes the Government’s indication that the minimum period of service required for entitlement to any annual holiday with pay is 12 months. It also notes that this period may be shorter in the case of holidays granted collectively. The Committee recalls that, in accordance with Article 5(2) of the Convention, the length of the minimum period of service required may not in any case exceed six months. The Committee requests the Government to indicate the measures adopted or envisaged to bring the legislation into conformity with the Convention on this point.

Article 5, paragraph 4. Period of service. Absence from work for reasons beyond the control of the worker. The Committee notes the Government’s reference to works of jurisprudence according to which section 133(4) of the CLT, which provides that employees who, during the period in which they are acquiring entitlement to holidays, have received social insurance benefits in respect of employment accidents or occupational diseases for over six months, are not entitled to annual holidays, should be considered as being repealed. However, in the absence of a legislative provision explicitly repealing section 133(4) of the CLT, the latter remains applicable. The Committee therefore requests the Government to provide fuller information on this point.

Article 6, paragraph 2. Incapacity for work. The Committee recalls its previous comment in which it requested further explanations concerning section 130(1) of the CLT, under the terms of which periods of absence from work may not be counted as part of the holiday, and the Government’s statement that holidays with pay are neither interrupted nor suspended in the case of sickness arising during the holiday period. The Government adds in its latest report that, in accordance with the jurisprudence, section 130(1) of the CLT should be considered as being repealed. In the absence of a legislative text explicitly repealing section 130(1) of the CLT, the latter remains applicable. The Committee therefore requests the Government to provide further information on this point.

Article 8, paragraph 2. Division of the annual holidays with pay. The Committee is bound to draw the Government’s attention once again to sections 134(1) and 139(1), under the terms of which one of the parts of the holiday may not be less than ten calendar days, while under the terms of the Convention the minimum duration of one part of a divided holiday period shall consist of at least two uninterrupted working weeks, that is 14 calendar days. The Committee therefore requests the Government to indicate the measures adopted or envisaged to bring the above sections of the CLT into conformity with Article 8(2) of the Convention.

Article 10. The time at which the holiday is to be taken. The Committee notes the Government’s indication that the employer decides upon the time at which the holiday is to be taken, with the worker being notified of this decision 30  days before the effective date of the holiday in the case of individual holidays and 15 days in the case of collective holidays. The Committee recalls that the time at which the holiday is to be taken shall be determined by the employer after consultation with the employed person concerned or her or his representatives and that, in fixing the time at which the holiday is to be taken, work requirements have to be taken into account by the employer, as well as the opportunities for rest and relaxation available to the employed person. The Committee requests the Government to indicate the measures adopted or envisaged with a view to ensuring that the employed persons concerned or their representatives are consulted when the timing of holidays is determined.

Article 12. Relinquishment of the right to annual holidays with pay. The Committee notes that the Government has not provided any further information in relation to section 143 of the CLT, which allows an employee to request that the equivalent of one third of the holiday with pay to which she or he is entitled be granted in cash. It recalls that agreements to relinquish the right to the minimum annual holiday with pay prescribed by the Convention, that is three weeks, shall be null and void or be prohibited. The Committee therefore once again requests the Government to indicate the measures adopted or envisaged to ensure that workers benefit from a minimum period of annual holiday with pay of three weeks.

Part IV of the report form. Court rulings. The Committee notes the numerous court rulings provided by the Government which refer to the provisions of the Convention, and particularly Article 11 respecting a proportionate period of holiday with pay in the event of termination of the employment relationship. It notes that, despite doctrinal divergences in relation to the termination of the employment relationship for valid reasons, the case law sees in Decree No. 3.197/99, promulgating Convention No. 132, an innovative aspect in relation to proportionate holiday as Article 11 ensures to all workers the right to a proportionate period of holiday in the event of the termination of the employment relationship, irrespective of the reason for such termination. The Committee requests the Government to continue providing copies of court rulings containing clarifications on questions of principle relating to the application of the Convention.

Part V of the report form. Application in practice. The Committee notes the detailed statistical data provided by the Government concerning the contraventions reported during the period 2003–07. The Committee would be grateful if the Government would continue providing statistical data, and particularly extracts from reports of the inspection services indicating the number of infringements reported in relation to paid annual holidays and the penalties imposed, statistics indicating the number of workers covered by the relevant legislation, copies of collective agreements containing clauses respecting annual holiday with pay, etc.

In conclusion, the Committee notes that numerous provisions of the Convention are still not fully applied and that little tangible progress appears to have been made since 2003, when the Government indicated that it was its intention to review the labour legislation in consultation with the social partners. The Committee once again requests the Government to keep the Office informed of any new developments in this respect.

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

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.