Sibele de Oliveira Pimenta
Lawyer at Marcos Martins Advogados
The end-of-year festivities and the drop in production in January, as well as the seasonal nature of the market in some business segments, are some of the main reasons why companies opt for collective vacations, i.e. those granted to all employees simultaneously, which can cover specific sectors or even the entire company, regardless of the worker’s period of service.
However, for it to be possible to grant collective leave, the employer must pay attention to the rules set out in the CLT, especially due to the current wording of §1 of article 134, amended by Law 13,467/2017 (Labor Reform).
Under the terms of the head of article 139 of the CLT and its §1, the employer may grant collective vacations to its employees, with the option of taking the vacations in two annual periods, provided that neither is less than 10 calendar days. Thus, the new rule in §1 of article 134 of the CLT, regarding the splitting of vacations into up to three periods, two of which are no less than five calendar days each, does not apply to collective vacations, which still follow the rule in article 139 unchanged.
As for the fractioning of collective vacations for employees over the age of 50, article 134 of the CLT, in its wording prior to Law No. 13,467/2017, made it impossible to grant fractional vacations to employees over the age of 50 and under the age of 18 due to authorized collective vacations, which is undoubtedly the most significant change regarding collective vacations, ending the debate regarding the application of the old § 2 of article 134 of the CLT, regarding collective vacations, regulated by article 139 of the CLT.
Therefore, the new wording of article 134 revoked paragraph 2, and there is no mention of any prohibition on the granting of split vacations to those over 50 and those under 18.
There is also no impediment to granting part of the period as collective vacation and the other part individually, under the terms of article 134 of the CLT. The employer may, for example, grant 20 days individually and 10 collectively, as long as the employee agrees, although granting collective vacation is the employer’s prerogative.
However, it is up to the employer to determine the start and end date of the collective vacation, as well as whether it will be in one go or divided into two periods, or three periods if it runs concurrently with individual vacation (with the employee’s agreement in this case).
Another rule that must be observed by the employer is §3 of Art. 134 of the CLT, which expressly prohibits the start of vacation in the two-day period preceding a public holiday or paid weekly rest day.
It should also be noted that collective vacations are not to be confused with recess, since the latter consists of time off granted to employees at the employer’s discretion, and is not deducted from annual vacations, such as collective vacations, nor from the bank of hours.
To this extent, it must be concluded that before the Labor Reform, workers could, in exceptional cases, have their vacations divided into up to 2 (two) periods and now they can have their vacations divided into up to 3 (three), observing the rule imposed by the current wording of article 134 of the CLT, which also authorizes the possibility of splitting vacations for workers over 50 (fifty) years of age and under 18 (eighteen) years of age, maintaining the deadline for advance notice of the period and observing the communications to the Ministry of Labor and the Category Union.
