Regional Labour Tribunal of the Third Region, Tenth Chamber, Melo Filho, Oswaldo v. Rodrigues de Miranda, Espólio de Theodomira, 4 November 2009, TRT -00491-2009-091-03-00-0-RO
Constitution of Brazil
(1) Norms that define fundamental rights and guarantees are immediately applicable.
(2) The rights and guarantees expressed in this Constitution do not exclude other rights stemming from the system and principles adopted by this text or stemming from international treaties to which the Federal Republic of Brazil is a party.
(3) International treaties and conventions on individual rights that are adopted by both houses of the Congress, in two rounds, by three fifths of the votes of the members of each house will be the equivalent of constitutional amendments.
Holidays with pay , Domestic workers
Direct resolution of a dispute on the basis of international law
Paid holidays/ Domestic workers/ Direct resolution of a dispute on the basis of international law
In the present case, the employer was ordered to pay outstanding holidays. The employer lodged an appeal, arguing that neither holidays taken nor the accrued holidays were owing to domestic workers.
The Court resolved the issue by applying the provisions of ILO Convention No. 132. Article 4 of that Convention states: “1. A person whose length of service in any year is less than that required for the full entitlement prescribed in the preceding Article shall be entitled in respect of that year to a holiday with pay proportionate to his length of service during that year”, while Article 11 of the Convention states: “An employed person who has completed a minimum period of service corresponding to that which may be required under Article 5, paragraph 1, of this Convention shall receive, upon termination of employment, a holiday with pay proportionate to the length of service for which he has not received such a holiday, or compensation in lieu thereof, or the equivalent holiday credit”. The Court also mentioned that article 5 of Brazil’s Federal Constitution establishes that “[t]he rights and guarantees expressed in this Constitution do not exclude others deriving from the regime and from the principles adopted by it, or from the international treaties in which the Federative Republic of Brazil is a party”.
The Court also observed that “ILO Convention No. 132 aims to institute holidays and seeks to guarantee the quality of life of humans involved in the production process”, independently of the motive for the termination of the labour relation and without distinguishing between categories of workers (excepting seafarers), and therefore, the holiday pay is deemed to be owing to the domestic worker in question”.