Government postpones rule that makes it difficult for businesses to operate on holidays until 2026

The Ministry of Labor and Employment (MTE) has extended the entry into force of Ordinance 3,665, which establishes new rules for working on holidays in commerce, until March 1, 2026. The decision was made official on Tuesday (17), after a movement in Congress to try to overturn the measure. With the new extension, Minister Luiz Marinho says that the objective is to "guarantee a technical deadline to consolidate negotiations.”

The validity of the ordinance had already been postponed several times, from March 1, 2024 to January 1, 2025, and then to July 1, 2025, before the new extension to 2026.

What is Ordinance 3,665 and why was it postponed to 2026?

Originally published in November 2023, the ordinance, signed by the Minister of Labor, Luiz Marinho, who has his origins in the labor movement, like President Lula, is expected to bring more obstacles to the lives of merchants and workers. Its objective is to reestablish the obligation of collective bargaining with unions to authorize the operation of commerce on holidays.

According to the MTE, the ordinance seeks to align the regulation of work on holidays with Law 10.101/2000, amended by Law 11.603/2007. The legislation already provided for the need for a collective agreement between employers and workers, in addition to compliance with municipal legislation.

With this ordinance, sectors such as supermarkets, pharmacies, street and shopping mall stores, restaurants and bakeries would be directly affected, since the rule prevents work on holidays from being defined by direct agreements between companies and employees or on a permanent basis, always requiring union mediation.

Why could the measure be a setback for the economy?

Despite the technical justification of alignment with the law, the measure creates a scenario of greater difficulty and controversy for the operation of commerce, especially for those that depended on more flexible regulation from the Ministry of Labor, such as shopping centers.

Strengthening unions and the risk of "notary office" for stores to operate on holidays

Experts warn that the ordinance increases bureaucracy and costs for companies, in addition to taking away the autonomy of employers and employees. For Murilo Torelli, a professor at Mackenzie Presbyterian University, the new rule is a setback that privileges the union movement to the detriment of economic freedom and the ability to generate income.

Paulo Renato Fernandes, a professor at FGV Direito Rio, sees the measure as an attempt to "stifle the issue, creating difficulties and revenue for the union", transforming it into a "notary's office" where companies will need to obtain a "stamp" to operate. This intermediation can make the process bureaucratic and more expensive, since unions can charge companies to enter into these agreements, raising concerns that this charge will become mandatory.

Less economic freedom and autonomy for workers and companies

The ordinance is seen by some as part of a government "offensive" against the private sector and economic freedom. Fernandes, from FGV Direito Rio, states that the measure "kills people's freedom to stipulate this type of work", evaluating it as part of a "tune" by the current Ministry of Labor, oriented towards "interventionist" regulation that hampers labor relations and disregards market dynamics.

Direct impacts on workers' pockets and companies' cash flow

For many workers, especially those who earn commissions, the holiday represents an opportunity to increase their income. If businesses are prevented from opening due to a lack of collective bargaining agreements, these workers may lose the chance to increase their earnings on busy days.

For companies, the direct impacts include the loss of operational flexibility, with the dependence on union negotiations compromising the ability to respond to holidays and peak consumption. There is also an increase in bureaucracy, with the need to verify and comply with municipal legislation and maintain ongoing dialogue with unions.