Cultural and religious rest days and the Brazilian labor legislation

Nayara Ferreira Marques da Silva.

Attorney at Furriela Advogados.

 Rest days regulated by Brazilian law.

The Brazilian labor legislation recognizes the importance of rest for the health and well-being of workers, guaranteeing a set of rights related to weekly rest days, vacations and holidays.

However, the regulation of non-Christian cultural and religious rest days is still a necessary challenge to be faced, taking into account the cultural and religious diversity of our country in counterpoint with what is instituted by legislation.

As a rule, the Consolidation of Labor Laws (CLT) prohibits work on Sundays and national and religious holidays – art. 70, CLT.

It was up to Law n. 605/49 to guarantee that rest on Sundays and holidays would be remunerated and, in doing so, dealt with rest on civil and religious holidays according to local tradition.

The fact is that the legislation, based on what would be the local tradition, only guarantees the remuneration and rest, concomitantly, to the civil and religious holidays provided by law, which are currently the following nationally:

1. Civil:

• January 1st (Law 662/49);
• April 21 (Law 1.266/50);
• May 1st (Law 662/49),
• September 7 (Law 662/49)
• November 15 (Law 662/49),
• general election day in the country (art. 360, Law 4.737/65 and art. 77 CRFB),
• magna date of the state as provided by specific state law,
• start and end dates of the centennial of the municipality, according to local legislation. l.

1. Religious

• October 12 (Our Lady of Aparecida, Law 6.802/80);
• Friday of the Passion (included in the list of a maximum of four religious holidays declared by municipal law – Law 9.093/95)
• November 2 (Finados, Law 10.607/2022)
• December 25 (Christmas, Law 662/49).

Only national holidays are highlighted above. However, it is possible to notice that, although the Law guarantees that civil and religious holidays are fixed according to the local culture, the commemorative dates listed are all related to Christian culture, even though Brazil is such a diverse country in terms of culture and religion.

Sunday itself as a day destined for rest originated in Christian culture, as it was considered the day destined for the descent of the Holy Spirit upon the apostles, as taught by Vólia Bomfim (Direito do Trabalho, 19th Ed. Método, 2022, page 707):

“The right to weekly rest on the seventh day had its origin among the Hebrews, who used to rest on Saturdays, because the Holy Scripture preached that God rested on the seventh day after creating the world. Later, the right to weekly rest became part of Moses’ Decalogue, and, as Sunday was the day destined for the descent of the Holy Spirit on the apostles, rest fell on Sundays.”

In this scenario, how to deal with issues such as the sacredness of the Sabbath for Adventists, Yom Kippur (Day of Forgiveness) for Jews, Ramadan for Muslims, or even February 2nd for Umbandists, if these days are not considered holidays and days of paid rest by Brazilian legislation? Would the worker have the right to not attend without having the day deducted from his salary?

The questioning is very relevant, since only in Brazil, for example, there are between 800 thousand and 1.5 million Muslims, according to a research by the Federation of Muslim Associations in Brazil (FAMBRAS)[1]. The number has been growing not only by migration, but by the conversion of Brazilians, a fact that represents a contemporary manifestation, in which cultural renovations and sociocultural contexts transmute the idea of cultures and religions that were once inherited and are now chosen[2].

Besides Ramadan, there are other challenges for Muslim employees working in Brazilian companies, such as the time to perform salat, which are the daily prayers, performed at five times a day. There is fajr (at least 15 minutes before sunrise), dhuhr (done when the sun reaches its highest point in the sky, around noon), asr (during the afternoon, before sunset, around 3:39 pm), maghrib (around 6:15 pm) and isha (around 7:26 pm)..

Vera Lúcia Maia Marques, in her master’s thesis entitled “Conversion to Islam: the Brazilian outlook, the construction of new identities and the return to tradition“[3] interviewed new converts to understand the consequences of conversion in several areas of life, among them labor. In this sense, it is worth highlighting the following excerpt, which highlights the difficulty addressed in this article:

Another work-related issue is prayer times. Although most of the group admitted that this is not the biggest problem within the job, they admit that joining prayers to compensate for unperformed prayer is not ideal, as prayers should always be done at the times provided in the Koran.

“I work only four hours … and I put two and two together, I do the morning prayers, and now I’m working in the afternoon, I can do the morning and midday prayers, I don’t do the afternoon prayers, I come home and do them together with the sunset prayers… but I discovered in the Sunnah that God loves it when the devotee prays at the right time…” (female, 50, converted 2 years ago).

“It’s good to keep the right hours … but if there’s no way I stay on time. When you have a customer and the hour passes, you can pray (afterwards) but I’m left with sadness in my heart because the schedule is gone.” 113 (female, 28 years old, converted 8 years ago).

In Brazil, as there is no regulation for breaks, case law tends to consider them, when granted, as time at the employer’s disposal and of mandatory remuneration, as can be seen in a decision issued by the Regional Labor Court of the 4th Region (TRT-4 – RO: 00008603920115040661 RS 0000860-39.2011.5.04.0661, Reporting Judge: MARIA HELENA LISOT, Date of Judgment: 04/24/2013, Origin: 1st Labor Court of Passo Fundo).

In this context, the lack of regulation means that breaks are granted as a liberality by the employer. There is no obligation beyond what is provided by law, and the same goes for on-call days.

We understand, however, that the concession of the referred benefits is a way to privilege the exercise of cultural and religious diversity in the work environment, as well as the community sense of cultural and religious holidays. That is why it would be possible for the employer to adopt an internal policy to promote diversity through the granting of allowances for absences and breaks, even though there is no legal obligation to do so.

In this aspect we cannot forget that when we talk about cultural rights and the exercise of religious freedom we are dealing with human rights, anchored in the dignity of the human person, anthropological-cultural premise of the Constitutional State (SARLET & NETO, 2020)[4].

Thus, promoting cultural and religious diversity in the workplace is also a way to safeguard human rights.

[1] https://www.fambras.org.br

[2]https://journals.openedition.org/etnografica/777

[3] Mestrado em ciências Sociais. PUC SP. Disponível em: <https://tede.pucsp.br/bitstream/handle/4009/1/tese_66193.pdf>. Acesso em 23.03.2023.

[4] Wolfgang Sarlet, I., & Weingartner Neto, J. (2020). Constituição, religião, feriados e racismo. Revista De Direitos E Garantias Fundamentais, 21(1). https://doi.org/10.18759/rdgf.v21i1.1803. Disponível em: < https://sisbib.emnuvens.com.br/direitosegarantias/article/view/1803/542>