The Proposed Amendment to the Constitution (PEC) which provides for the end of the 6x1 scale, with two days of paid rest per week, was approved by the Senate this Wednesday (14).
The proposal received 75 votes in favor and one against in the two rounds of voting. Senator Hamilton Mourão (Republicanos-RS) was the only one to vote against.
With approval in both Houses of Congress, the constitutional amendment goes to promulgation, without the need for sanction from the President of the Republic. The new rules come into effect after publication, but implementation will be gradual.
The change provides for two days of paid rest per week and a gradual reduction in maximum working hours, without a salary reduction. Two months after the amendment is published, the weekly limit will drop from 44 to 42 hours. After another year, it will increase to 40 hours.
The proposal also allows for different working and rest regimes, which may be regulated by law and collective norms, respecting constitutional limits.
This is the case of sectors that need to operate continuously, such as health, security, transport and urban cleaning. According to labor lawyer Hugo Luiz Schiavo, the proposal does not establish a list of professions that would be excluded from the new rules.
“There is no list of professions that would be excluded from the new rules, nor would it be recommended that it exist,” says Schiavo.
This means that workers in these areas may have their working hours and rest periods organized differently, according to the rules applicable to the activity.
The possibility of maintaining special scales, such as 12x36, will depend on the regulations and conditions foreseen for each regime. The lawyer also highlights that meal and rest breaks must be respected.
The proposal also provides for differentiated treatment for workers with a higher education diploma and remuneration equal to or greater than 2.5 times the ceiling of the General Social Security Regime (RGPS).
For this group, the new rules regarding duration and control of working hours will not be mandatory, unless the employer decides to apply them or if there is a provision in an agreement or collective convention. The right to rest, however, remains.
Labor legislation already provides for situations in which there is no traditional control over working hours, such as in the case of employees who occupy positions of trust or who work outside the company in activities in which it is not possible to control their hours.
Who may have minor impacts with the change
Not all workers will have their working hours reduced from 44 to 40 hours. Some categories already have lower limits provided for by law, while others are not governed by the CLT.
Banking: some functions have a six-hour day, from Monday to Friday, totaling 30 hours per week. Therefore, reducing the general limit from 44 to 40 hours does not represent a change for these workers.
Teleservice and telemarketing: these professionals already work up to six hours a day and 36 hours a week. The new rule may mainly affect the way rest days are organized.
Underground mine workers: also have specific working hours limits, lower than the 44 hours per week set out as a general limit.
Self-employed, MEIs and PJs: anyone who works on their own or provides services as a legal entity without an employment relationship is not governed by the CLT and, therefore, is not directly subject to the new rules.
Informal workers: professionals without a formal contract, such as street vendors, delivery people and app drivers, are also not subject to CLT rules.
Who can maintain different scales
The end of the 6x1 scale does not necessarily mean that all workers will follow a traditional routine of five consecutive days on and two days off.
Sectors that need to maintain continuous services will be able to organize working hours and breaks differently, in accordance with regulations and collective bargaining rules.
Health: hospitals and emergency services can maintain special shifts and shifts, such as 12x36.
Security: activities that need to operate continuously can maintain different schedules.
Transport: workers in the sector can have their journey organized according to the need for the services to operate.
Urban cleaning: as it operates at different times and continuously in many cities, the sector can adopt a specific organization of the journey.
Ordinance and surveillance: workers in these areas may also have special shifts, according to applicable rules.
Special scales may be maintained
Labor lawyer Elisa Alonso, partner at RCA Advogados, explains that the fact that an activity can adopt a different scale does not mean that its workers will lose the right to the new protection.
According to her, sectors that need to maintain continuous services, such as health, security, transport and urban cleaning, will be able to organize working hours and days off differently, including through collective agreements and conventions.
"It does not mean that hospitals, security services or transport systems necessarily have to adopt a traditional Monday to Friday schedule", he states.
In the lawyer's assessment, workers who already work on the 12x36 scale, for example, may continue to be subject to this model, as long as the limits set out in the new rule and the specific compensation conditions are respected.
Thus, a hospital would not necessarily need to replace all 12-hour shifts with eight-hour shifts.
The expert also highlights that there is a difference between excluding a profession from the new rules and allowing a category to have a different scale.
In the first case, the worker would lose the right to new protection. In the second, the right remains, but the way of organizing the journey and rest periods is adapted to the characteristics of the activity.
"Perhaps the main effect of the proposal is not to simply replace the expression '6x1' with '5x2'", says Alonso.
For those who currently work six days and take one day off, the main change would be the reduction of the weekly working day from 44 to 40 hours and the extension of rest from one to two days. The distribution of these periods, however, may vary depending on the activity and the rules established for each regime.
"For some categories, this could mean five days of work and two days off; for others, the maintenance of special shifts or shifts, with a different distribution of rest periods", explains the lawyer.
