University of São Paulo: TST decides that women in commerce must take Sunday off every 15 days

The Superior Labor Court (TST) determined that women who work in commerce must take Sundays off every 15 days. In an interview with Jornal da USP on Ar 1st edition , Clarissa Valadares Chaves, a master’s student at the USP Law School (FD), analyzes recent decisions.

According to Clarissa, “the main question is why this interpretation of the TST can dictate the next paths in relation to matters involving women. But, specifically in relation to this case, there is a determination in Law 10.101 that workers in commerce in general must have their weekly paid rest every three weeks, coinciding with Sunday. In relation to women, nowadays most of the TST class understands that it should coincide with Sunday every two weeks, that is, there is a different treatment for women. Article 386 of the CLT makes this provision.”

After several other provisions of the CLT were revoked, the master’s student understands that the justification is “because it no longer makes sense to bring this differentiated treatment to women. So, nowadays, the superior labor court has positioned itself in this sense, understanding the constitutionality of this rotation schedule every 15 days”.

There are several points and arguments about the effectiveness of the decision. “Those who argue that this norm 386 of the CLT should apply is that, because it is more protective and because, in fact, the woman is in an overload of work, performing what we call a triple shift, reconciling not only the workday, but the journey from home and caring for children and family, it would make sense for her to have this constitutional protection”, attests Clarissa.

On the other hand, the master’s student comments: “Those who understand that the CLT rule should not apply, but the specific legislation to trade workers in general, justify in the sense that there would be no biological differences in women for such differentiated treatment. This could even constitute potential discrimination and the Constitution prohibits discriminatory treatment between men and women”.

According to Clarissa, the superior labor court has been constantly changing in recent years, but, for her, the focus is that, “in fact, women are overloaded, not only physically, but mainly mentally. We know that there is indeed this triple journey. But this type of legislation, in the end, is what I call an icebreaker, because, in a way, we will even be reinforcing this sexual division of work, in which women have difficulty in career progression, in the remuneration progress, including access to positions of trust, and these are the issues that stand out. It is mainly a structural problem, and the main change would be cultural, but the legislator cannot be aware of these changes that need to happen”.

“Today, we are still in a situation of jurisprudential divergence, but when this divergence exists, it must be pacified. There are several procedural instruments that work in this sense of pacification, the analysis of constitutional compatibility is done at the end of the day by the Federal Supreme Court, but this is our situation today.”

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