Fux suspends 5x2 shift trial and takes to plenary

The Minister Luiz Fux, of Supremo Tribunal Federal (STF), called for prominence in the judgment on the transition of the 6x1 to 5x2 work scale and suspended the analysis that was taking place in the virtual plenary. With that, the case will be taken to the physical plenary of the Court, still without a defined date for resume. The decision was made on Thursday, November 23, when the virtual trial was underway.

By the time of the highlight, three ministers had already voted accompanying the rapporteur, Flávio Dino, to confirm the rules defined by him for the start of the 5x2 scale on 16 December. Now the scoreboard is zeroed and the ministers will have to restart the trial when the president of the STF, Edson Fachin, put the action on the agenda in the physical plenary.

Dino's Liminar

While the plenary of STF does not take a decision, the injunction of Flávio Dino remains valid. In it, the minister maintains for December 16 the start of the 5x2 scale and allows that, during the first stage of the transition, the 42-hour weekly journey is distributed in five days.

Those five days with work schedules of up to 8 hours and 24 minutes per day, with no additional overtime payment for the 24 minutes that exceed eight hours. The rule applies even if there is no collective agreement or convention by December 15.

Votes already cast are annulled

The ministers Alexandre de Moraes, Cármen Lúcia and Gilmar Mendes had already confirmed the rules defined by Dino. The virtual plenary would run until 23:59 on November 23. Now, each of the ministers will need to vote again when Fachin puts the issue on the agenda in the plenary of the Supreme Court.

The change in the scale of work has been approved by Congress and provides for a gradual reduction of the weekly maximum workday. The first stage begins on December 16, 2026, when the limit goes from 44 to 42 hours per week, with two days of paid rest. The definitive reduction to 40 hours per week is planned for December 2027.

Impasse on daily journey

One of the impasses brought to the STF involved precisely this transitional stage. As the new rule has maintained the ordinary limit of eight hours a day, the division of the 42 hours by the five working days results in eight-hour and 24-minute days.

In the injunction now submitted to the other ministers, Flávio Dino authorized these additional 24 minutes without the incidence of overtime during the interim period, even if employers and unions have not reached a collective agreement by December 15.

Other determinations of the injunction

The decision also removed rigid locks of time, weekly and monthly, for the enjoyment of paid rests. Flávio Dino also set a 90-day deadline for reviewing collective agreements, determined that the reduction of the day may not lead to salary reduction and gave 180 days for Congress to regulate differentiated regimes for specific sectors and rules of adaptation for micro and small companies.

The case is now awaiting inclusion in the agenda by the president of STF, Edson Fachin. The source did not specify when this will occur. The expectation is that the physical plenary will resume the discussion on the transition of the labor scale, which impacts millions of workers throughout the country.

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