Ministry of Labor and Employment Ordinance No. 3,665, of November 13, 2023, significantly altered the rules for working on holidays in the retail sector. The regulation revoked several permanent authorizations provided for in Annex IV of Ministry of Labor and Employment Ordinance No. 671/2021 and now requires specific provisions in... collective bargaining agreement (CBA) so that the covered commercial activities can operate on holidays, in accordance with Article 6-A of Law No. 10.101/2000, as amended by Law No. 11.603/2007.

The validity of the Ordinance has been extended several times since its publication. Currently, according to MTE Ordinance No. 1,066, of June 17, 2025, The entry into force date is set for March 1, 2026.. Until that date, the permanent authorizations provided for in Ordinance No. 671/2021 remain in effect, which makes the current moment strategic for preventive adjustments.

What changes with Ordinance No. 3,665/2023?

Until then, many retail companies relied on permanent authorizations granted administratively by Ordinance No. 671/2021, which allowed work on holidays based on individual negotiation or even unilaterally, without requiring a collective agreement. This system, however, was criticized for contradicting the provisions of Article 6-A of Law No. 10.101/2000, which expressly conditions work on holidays in the retail sector on authorization in a collective bargaining agreement.

With the new regulation, the logic is reversed: authorization for work on holidays in the retail sector now depends, as a general rule, on... two cumulative requirements:

1. express provision in a collective bargaining agreement (CBA), signed between employers' and workers' unions; and
2. compliance with municipal legislation, which may impose additional restrictions on hours or operation.

Sectors directly impacted

The regulation revoked sub-items 1, 2, 4, 5, 6, 17, 18, 19, 23, 25, 27, and 28 of item II (Commerce) of Annex IV of Ordinance No. 671/2021. In practice, the activities that lost their permanent authorization to operate on holidays include, among others:

• Retail trade in general;
• supermarkets, hypermarkets and wholesalers;
• Pharmacies and drugstores;
• Retailers of fish, meat, fruits, vegetables, poultry and eggs;
• Trade in ports, airports, bus and train stations;
• vehicle dealers;
• Distributors of manufactured goods.

The activities listed in the unrevoked items of Annex IV, such as hotels, restaurants, bars, cafeterias, gas stations, entertainment venues, and other services that, by their nature, already had specific legal authorization, remain permanently authorized to operate on holidays, regardless of collective bargaining agreements.

Legal and financial risks

From a legal standpoint, the main risk lies in operating on holidays without the support of a collective bargaining agreement valid after March 1, 2026. The absence of such an instrument may result in:

• administrative fines by labor inspectors, with the application of the fine stipulated in article 75 of the CLT, according to article 6-B of Law No. 10.101/2000;
• court rulings ordering double payment Regarding holidays worked without proper collective authorization (Article 9 of Law No. 605/1949 in conjunction with Precedent 146 of the Superior Labor Court);
• salary reflections Regarding vacation pay, 13th-month salary, FGTS (Brazilian severance fund), and other labor-related benefits resulting from double payment;
• public civil actions lawsuits filed by the Labor Prosecutor's Office, with the possibility of convictions involving obligations to act and compensation for collective moral damages;
• weakening of corporate defense in individual labor lawsuits, especially in disputes involving irregular work hours and schedules without regulatory support.

It is worth highlighting that the Superior Labor Court (TST) has already established an understanding, including through the Specialized Subsection I for Individual Labor Disputes (SDI-1), that authorization for work on holidays in the retail sector necessarily depends on a collective bargaining agreement, according to Article 6-A of Law No. 10.101/2000. Therefore, even before the full implementation of Ordinance No. 3.665/2023, there is a concrete jurisdictional risk for companies operating without this support.

Operational and organizational impacts

Beyond the direct financial risks, the regulatory change has significant operational implications. Companies that maintain continuous operations—such as supermarkets, retail chains, and distribution centers—will need to ensure that their schedules are aligned with the applicable collective agreements before the effective date.

Disagreements regarding work on holidays often lead to internal friction, employee dissatisfaction, and increased litigation. In sectors with high turnover, these issues can directly impact the organizational climate and productivity indicators. Adopting schedules without collective agreement weakens the company's position and increases labor liabilities.

Collective bargaining as a central instrument

It is crucial to highlight that the new regulation does not prohibit work on holidays. What changes is the requirement for legal validity: authorization no longer stems from a unilateral administrative act but now depends on formalized collective bargaining.

Collective bargaining agreements take on a strategic role, serving as a balancing instrument between business interests and worker protection. Dialogue with unions and the correct interpretation of agreements become indispensable. In addition to authorizing work on holidays, the collective bargaining agreement may establish specific conditions, such as differentiated bonuses, compensatory time off, and shift rules.

Preventive recommendations

Given the regulatory landscape, companies are advised to take the following steps immediately:

• Check if the current collective bargaining agreement contains an express clause authorizing work on holidays;
• Identify any specific conditions stipulated in the collective bargaining agreement, such as compensation, time off, or differentiated bonuses;
• Consult the applicable municipal legislation, which may impose additional restrictions on operations on public holidays;
• To promote integration between the HR, legal, and operations departments to align internal policies and schedules;
• Update internal policies and clearly communicate the new rules to managers and operational leaders;
• If the current collective bargaining agreement does not include this authorization, initiate negotiations with the employers' association to include a specific clause in the next collective bargaining agreement.

Conclusion

In a scenario of increasingly stringent oversight, ignoring regulatory changes can represent significant costs. Legal compliance has ceased to be merely a formal obligation and has become an integral part of risk management and corporate sustainability strategies. Decree No. 3,665/2023, scheduled to take effect on March 1, 2026, reinforces the role of collective bargaining as a pillar of labor relations and demands a proactive and strategic approach from companies.

Our firm has a team specializing in labor law and labor compliance, prepared to advise companies on the interpretation of collective bargaining agreements, review of work schedules, and structuring safe practices related to work on holidays. We act preventively and strategically to avoid liabilities and ensure legal security for business decisions.