Doing Legal Research in Brazil. By Edilenice Passos. Edilenice Passos is a fully trained librarian and she earned her Master's Degree in She currently works at the Research Service of the Brazilian Senate as the head of the sector in charge of gathering background information for the consultants. Edilenice has written five books and published several articles.
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DOI: Longer working hours and shorter meal breaks are harmful to the physical and mental health of workers, in addition to having negative impact on their quality of life and being associated with increased rates of accidents due to fatigue. In the case of telecommuters, lack of control on working hours increases the risk of illness due to stress and disruption of their personal lives.
The health of pregnant and breastfeeding women working in medium or minimally insalubrious environments and of their offspring might be affected. Measures for worker health control must be implemented to avoid any increase of work accidents, diseases and disability, and consequently of the negative impact of such events on the quality of life of workers and their families. Keywords: working conditions; legislation, labor; occupational health.
The rights to health, work, safety and social security are established in article 6 of the Brazilian Federal Constitution FC 1. In turn, articles to state that health is a right for all citizens and a duty for the State. Indeed, the State is charged of ensuring and promoting health by means of public policies, actions and services organized within one single system, which might be additionally complemented by private health care 1.
Such actions and services are of public interest, and the role of the government is to decide "in the terms of the law, on their regulation, supervision and control, while actual execution might be direct or outsourced, by natural or private legal persons" 2.
It provides a promotional framework for occupational safety and health through conventions and recommendations to develop uniform global standards for labor legislation, including a global minimum level of labor protection. In addition, it emphasizes the priority of the principle of prevention for securing a safe and healthy working environment. According to the World Health Organaization WHO 4 "the occupational health and the well-being of working people are crucial prerequisites for productivity and are of utmost importance for overall socioeconomic and sustainable development.
The aim of this policy is to reduce the occurrence of work-related accidents and diseases through health promotion, rehabilitation and surveillance actions. PNSTT is meant to cover all workers, but gives priority to. MLE passed legislation specifically targeting labor relations. It published NRs on work safety and health, which are to be "mandatorily observed by private and public companies and direct and indirect public administration agencies, as well as by Legislative and Judiciary agencies with employees under the Consolidation of Labor Laws CLT regimen" 9.
Up to the present time, 36 NRs specifically target occupational safety and health 9. It includes compulsory pre-employment, period, return to work, change of function and dismissal medical examinations focused on clinical assessment and that comprise occupational interview, physical and medical examination and additional tests 9. The aim of this program is "to preserve the health and physical integrity of workers, by anticipating, recognizing, assessing and consequently controlling ongoing or future environmental hazards at the workplace, with consideration to the protection of environmental and natural resources.
NR 4 addresses "specialized safety engineering and occupational medicine services". It makes mandatory for "private and public companies, direct and indirect public administration agencies and Legislative and Judiciary agencies with employees under the Consolidation of Labor Laws CLT regimen" to set "Specialized Safety Engineering and Occupational Medicine Services to promote the health and protect the physical integrity of workers at the workplace.
NR 6 deals with personal protective equipment PPE. Item 6. Also the social security legislation considers issues inherent to workers' health, such as work accidents, occupational and work-related diseases, disability retirement, sick pay, accident pay Law No.
PPP is a historical-occupational document that contains administrative and environmental information and the results of biological monitoring, among other data collected along the period an employee worked for a given employer. In addition, for workers to claim benefits they must be registered with the Social Security administration, the conditions for which are established in article 12 of Law No.
The social security legislation further includes rules for retirement by age and length of service, among others. The Labor Reform — Law No. The aim of the present study is to discuss the possible impacts of Labor Reform on workers' health. The present was a predictive comparative study involving CLT and Labor Reform and the latter's impacts on workers' health. Outsourcing involves the transfer by the outsourcer of any of its activities, including the main one, to a private legal person with economic capacity compatible with the performance of such The following articles are meant to avoid employees being laid off only to be immediately hired as outsourced:.
Article 5-C. Legal persons whose directors or partners worked for the outsourcer with or without formal employment relationship in the past eighteen months cannot be hired as contractors in the terms of article 4 of this Law, except when such directors or partners are retired Article 5-D. Laid off employees will not be able to provide services to the same company as employees of a contractor for eighteen months since the date of layoff our emphasis The legislation also ensures equal "sanitary conditions, health protection and work safety measures, and facilities adequate for work" Furthermore, it allows for the possibility " to establish, if thus they understand , that the contractor's employees will receive a salary equivalent to the one received by the outsourcer's employees, in addition to other rights not considered in this article" 10 our emphasis.
The Labor Reform also addresses telecommuting, i. Article 62 of the new law states that the CLT 5 chapter on working hours does not apply to telecommuters Before the new law was passed, CLT 5 restricted telecommuting to occupations and tasks incompatible with regular working hours.
Chapter II-A of the new law is fully devoted to this subject. Article E establishes "the employer will explicitly and ostensibly instruct employees about the precautions needed to avoid work-related diseases and accidents. In turn, article A enables "the parties, by means of individual written agreements, collective conventions or collective labor agreements, to define a working time of 12 hours followed by hour uninterrupted rest period, with observance and compensation for rest and meal breaks" our emphasis Article A states.
Collective conventions and collective labor agreements have precedence over the law when, among others, make stipulations on: [ III — breaks during working hours, in compliance with the maximum of thirty minutes for working times longer than six hours In any continuous job with duration of more than 6 six hours, rest or meal breaks are mandatory, will last at least 1 one hour and cannot last more than 2 hours except if established otherwise in written or collective agreements 5.
In regard to pregnant women, article A of the new law states they must be spared from "I — activities with the highest degree of insalubrity for the duration of pregnancy.
Article of CLT, which heading was not changed in the new law, establishes that "for the purpose of breastfeeding her own child until age 6 six months old, the woman is entitled to two special rest breaks of half hour each during the working hours" 5. The new law added a second paragraph to this article, according to which "the times for the rest breaks described in the heading of this article must be established through individual agreement between woman and employer" However, even before the Labor Reform came to be passed, official statistical data pointed to "insufficiencies in its preventive aspects relative to workers' health.
In general terms, "work accidents are the ones suffered by employees under the responsibility of employers, or by a special insured worker, during the performance of work-related activities and which cause permanent or temporary loss of their working capacity, being thus equivalent to the situations described in article 21 of Law No. Differently, several authors with sound juridical knowledge define the typical work accident as an "usually sudden, violent and fortuitous incident related to work performed by the victim for someone else and that causes a bodily injury" Alternatively, it is defined as a "single, sudden, unpredictable, well-defined in time and space incident with usually immediate consequences," of which essence violence is not part, and that might result in "severe, even fatal harm months or years after occurrence" According to one further definition, a work accident is one that "occurs instantaneously, suddenly affecting a worker, causing harm resulting in partial or total temporary or permanent disability for work, damage to the physical or mental health, or eventually the worker's death" The number of WAR issued increased by On analysis per type, typical accidents corresponded to Men were more frequently involved, Still according to the Ministry of Social Security "employers were responsible for the largest number of notifications, corresponding to On analysis per type of activity, the Ministry of Social Security found that eight categories were the most frequently involved, together corresponding to Out of fatal accidents at Petrobras from to , victims were outsourced employees, i.
A similar situation is seen in the electricity sector, in which the frequency of work accidents is 5. Outsourcers transfer to smaller companies the responsibility for hazards inherent to their work process, this is to say, hazards associated with the work activity are transferred to a third, or even a fourth party, namely companies which do not always have technological and economic conditions to manage them Outsourced companies are always smaller, invest less in safety and expose their employees to higher risk of accidents MLE provides two explanations for the largest number of work accidents at outsourced companies compared to the non-outsourced ones: "less rigorous management of the risk of work accidents at the outsourced companies," and the fact that "higher-risk tasks are usually performed by outsourced workers" In addition, "relative to the working hours, the weekly working time is 3 hours longer for these workers, without considering overtime work or compensatory time off," for which reason they are more susceptible to accidents The main reason is "the precarious work conditions to which outsourced workers are daily subjected," because "companies do not invest in preventive measures, even when activities put workers in a more vulnerable situation.
In addition, outsourced workers are segregated from the others, "especially due to the ban to eat at the same cafeteria as direct employees, distribution of differentiated uniforms and different transport arrangements" To this, one should add that "outsourced workers are invisible to society: they do not receive the same training, are not demanded to use Personal Protective Equipment PPE and their salaries are lower than the ones of the direct employees who perform the same function" According to the article entitled "Labor Reform ignores studies on workers' health, says an expert" published in ANAMT's website, the labor reform has negative effects on workers' health The changes made by the Labor Reform do not alter the PNSTT, which protects workers considered as a vulnerable group or not, outsourced or direct employees, pregnant and breastfeeding, in addition to workers who perform high-risk activities from the health perspective.
However, since the number of work accidents involving outsourced workers increased in recent years, the burden of SUS is expected to increase the moment Law No. Although the Ministry of Labor NR 4 establishes that outsourcers must extend the coverage of Specialized Safety Engineering and Occupational Medicine Services to contractors, as is known the latter's employees are not compelled to report to the outsourcer as concerns occupational safety and health, except when explicitly established in the legislation.
For this reason, the new law ensures outsourced employees equal "working conditions, occupational safety and health measures and adequate working facilities," which does not interfere with the application of NR 6, 7 and 9 9.
The new law also establishes:. Therefore, there is no segregation between direct and outsourced employees relative to the aspects listed in the law. However, "outsourced companies are smaller, invest less in safety and expose their employees to higher risk of accidents" In addition, "the weekly working time is 3 hours longer for these workers," for which reason they are more susceptible to accidents To avoid massive layoffs only to rehire the workers under the new regimen, giving rise to situations likely to cause physical and mental exhaustion, Law No.
Merely establishing the possibility of equal salaries for outsourced and direct employees does not ensure such equality will happen in practice, but the former are usually paid less even when functions and working hours are the same 17, This situation causes physical and emotional stress and directly influences the quality of life QOL of outsourced workers and their families 26, In addition, "outsourced workers are invisible to society: they do not receive the same training, are not demanded to use Personal Protective Equipment PPE and their salaries are lower than the ones of the direct company's employees who perform the same function," which also infers with their QOL 26, To overcome multidimensionality among individuals, WHO defines QOL as an individual's perception of their position in life in the context of the culture and value systems in which they live and in relation to their goals, expectations, standards and concerns As such it involves the following fields of scientific knowledge: health, ecology, ergonomics, psychology, sociology, economics, administration and engineering Management of QLW involves two aspects 26 , one individual and the other organizational.
The former involves more thorough understanding of work-related stress and diseases; the latter, an expansion of the notion of total quality, which encompasses behavioral aspects and satisfaction of individual expectations, in addition to processes and products, aiming at meeting the company's goals 26 , for which reason visits of occupational health teams to workplaces are important Segregation between outsourced and direct employees breaks the intended isonomy, giving raise to negative expectations, stress and longer working hours to achieve a higher salary, among other factors with negative impact on the health of a definite group of workers The same considerations apply to telecommuting, as lack of control of the working hours increases the risk of disease due to stress and disruption of the personal lives of workers, especially because they are almost continuously reachable via computers and mobile phones without a preset schedule" The older legislation allowed for a hour working time followed by hour rest only for some definite professional categories, such as health care and security.
In the new law this regimen is allowed for any sector, but introduced significant changes relative to rest and meal breaks during the working hours, which were shortened from one hour to 30 minutes. One should remind that the shorter the rest breaks, "the higher the risk of work accidents and occupational diseases. Longer working hours and shorter rest and meal breaks are harmful to the physical and mental health of workers and have impact on the quality of work, resulting in increasing frequency of accidents as a function of fatigue Upon alluding to the possibility of observing or compensating for rest and meal breaks, article A opened to door to a hour working time regimen without any right to rest and meal breaks, which will cause countless health problems over time, in addition to reducing the performance and quality of work and resulting in higher odds of accidents due to lack of attention and fatigue 26, If indeed observed, a minute meal break will compel workers to eat too fast — considering the time to go out and come back to the workplace — resulting in ill digestion and poor choice of food, hurry and stress, among other aspects that contribute to impair QOL.
In regard to pregnant and breastfeeding employees working under insalubrious conditions, the law will have considerable impact on the health of mothers and infants, as it allows for the women to work in environments classified as with medium or minimal insalubrity, except if they produce a medical certificate banning such exposure.
The older legislation indicated that pregnant and breastfeeding women should not be allocated to insalubrious areas independently from the degree of risk to health 5. In turn, the new law permits work in medium- or low insalubrious environments provided a physician gave authorization
Possible impacts of the labor law reform on workers’ health