Regional Labour Tribunal of the Third Region, Lacir Vicente Nunes v. Sandoval Alves Da Rocha and others, 7 May 2003, TRT-RO-3951/03
Constitution of Brazil
Article 5
(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.
Brazil
Holidays with pay , Domestic workers
Direct resolution of a dispute on the basis of international law , Reference to international law to strengthen a decision based on domestic law
Ratified treaty1
Termination of a contract of employment before taking holidays with pay/ Request for compensation/ Provisions differing between domestic law and a ratified international convention/ Application of the provision most favourable to the worker/ Direct resolution of a dispute on the basis of international law/ Reference to international law to strengthen a decision based on domestic law
Having been dismissed after eight months of work, a domestic worker entered a claim for compensation for holidays with pay not taken during her period of employment. The Court of first instance rejected her request, stating that domestic workers were not covered by the provisions concerning compensation for holidays with pay. The worker appealed that decision before the competent regional labour court.
The regional labour court first took up the applicability to domestic workers of general labour legislation concerning holidays with pay. The court first pointed out that the Constitution of Brazil in its Article 7 had the effect of extending to domestic workers the terms “of the consolidated labour laws” concerning paid holidays. In order to strengthen that decision, the Court referred to ILO Convention No. 132, ratified by Brazil in 1999, whose text excluded only seafarers from its scope of application.2
Two elements seemed, however, to block the claimant’s obtaining compensation for holidays with pay. First, Article 130 “of the consolidated labour laws” provided for a minimum period of twelve months of work for entitlement to the right to holidays with pay. Secondly, Article 147 of the same text provided that persons whose labour contract ended before 12 months shall have the right to compensation for holidays with pay except in the event that the employer terminated the contract “for a just reason”. In the case in point, the employee had been dismissed without challenging the validity of the termination of the contract.
The court acknowledged, nonetheless, the contents of ILO Convention No. 132 and stated that the conflict should be resolved on the basis of the principle of the provision most favourable to the worker. In that regard, the Court said the following:
“It should be noted that the principle of the most favourable provision applies in labour law. It is for the judge to apply the rule most favourable to the worker. In that sense, Article 11, together with Article 5 of the above-mentioned Convention, established a new period for acquiring holidays with pay, reduced to six months, regardless of the reason for termination of the contract.”
Giving application to the principle of the most favourable provision, the regional labour court of the third region based its decision on ILO Convention No. 132, recognizing the claimant’s right to compensation for holidays with pay, the amount of which was calculated in accordance with the provisions of domestic law.
1 ILO Convention on Holidays with Pay (Revised), 1970 (No. 132).
2 Article 2(1) of Convention No. 132: “This Convention applies to all employed persons, with the exception of seafarers.”
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