Brazilian labor reform and implications for nursing work: a case study

Reforma laboral brasileña e implicaciones para el trabajo de enfermería: un estudio de caso

Abstract

Objective:

to analyze the Brazilian labor reform repercussions and its implications for nursing work.

Method:

this is an exploratory-descriptive case study. Data were collected on the website of four Regional Labor Courts (in Brazil), taking into account the cases judged in first and second instance, involving nurses and aspects of labor rights that were linked to labor reform.

Results:

two cases were captured that dealt with: 1) lack of prior inspection for unhealthy work; 2) expansion of nurses’ working hours without overtime pay. These two situations were based on the labor reform, which confirms the process of loss of rights for nurses.

Conclusion:

implementing the new labor rules brought harm and had negative repercussions for nursing work, as it resulted in professionals’ loss of rights. In this treadmill, it is believed that the dissatisfaction of these workers will increase and may result in professional evasion.

DESCRIPTORS
Nursing; Jurisprudence; Working Conditions; Work Hours; Workers’ Compensation; Occupational Health

RESUMEN

Objetivo:

analizar las repercusiones de la reforma laboral brasileña y sus implicaciones para el trabajo de enfermería.

Método:

se trata de un estudio de caso exploratorio-descriptivo. Los datos fueron recolectados en el sitio web de cuatro Tribunales Laborales Regionales (en Brasil), tomando en cuenta los casos juzgados en primera y segunda instancia, involucrando enfermeras y aspectos de derechos laborales vinculados a la reforma laboral.

Resultados:

se capturaron dos casos que abordaron: 1) falta de inspección previa por trabajo insalubre; 2) ampliación de la jornada laboral de las enfermeras sin pago de horas extraordinarias. Estas dos situaciones se basaron en la reforma laboral, que confirma el proceso de pérdida de derechos de las enfermeras.

Conclusión:

la implementación de las nuevas normas laborales trajo perjuicios y repercusiones negativas para el trabajo de enfermería, ya que resultó en la pérdida de derechos de los profesionales. En esta cinta, se cree que la insatisfacción de estos trabajadores aumentará y puede resultar en la evasión profesional.

DESCRIPTORES
Enfermería; Jurisprudencia; Condiciones de Trabajo; Horas de Trabajo; Indemnización para Trabajadores; Salud Laboral

RESUMO

Objetivo:

analisar as repercussões da reforma trabalhista brasileira e suas implicações para o trabalho de enfermagem.

Método:

trata-se de um estudo de caso exploratório-descritivo. Os dados foram coletados no site de quatro Tribunais Regionais do Trabalho (do Brasil), levando-se em consideração os casos julgados em primeira e segunda instância, envolvendo enfermeiros e aspectos de direitos laborais que se vinculavam à reforma trabalhista.

Resultados:

foram captados dois casos que versavam sobre: 1) ausência de inspeção prévia para o trabalho insalubre; 2) ampliação da jornada de trabalho do enfermeiro sem pagamento de horas extras. Essas duas situações se fundamentaram na reforma trabalhista, que chancela o processo de perda de direitos dos enfermeiros.

Conclusão:

a implementação das novas regras trabalhistas trouxe prejuízo e repercutiu negativamente para o trabalho de enfermagem, pois se concluiu pela perda de direitos dos profissionais. Nessa esteira, acredita-se que a insatisfação desses trabalhadores aumentará e poderá resultar em evasão profissional.

DESCRITORES
Enfermagem; Jurisprudência; Condições de Trabalho; Jornada de Trabalho; Indenização aos Trabalhadores; Saúde do Trabalhador

INTRODUCTION

The approval of the Brazilian labor reform is inserted in the context of proposals for flexibilization of work that meet the neoliberal policies underway more explicitly since the 1990s.

In 2016, Chamber Bill 38, which proposed changes in labor legislation, was approved by the National Congress and sanctioned without vetoes by then President Michel Temer. Thus, the labor reform, in the form of Law 13,467 of July 13, 2017 met the neoliberal project premises in Brazil(¹). The changes represent a setback, configuring the loss of labor achievements of the last 100 years in Brazil, due to the numerous changes in the legal text of the Consolidation of Labor Laws (CLT – Consolidação das Leis Trabalhistas), which resulted in a reduction of rights for workers in the country.

The labor reform received harsh criticism, for violating principles of constitutional law and Brazilian labor, including: a) the workforce of an individual needs to be valued and protected by rights, as it is not just any commodity, and the principle of human dignity must be respected; b) the principle of protection for workers, since it is necessary to safeguard the most vulnerable part of the relationship between work and capital, due to the asymmetry of the relationship between employees and employers. In this sense, the need for the participation of unions and the State is evident, in order to ensure the rights and protection for workers(¹).

It is in this context to analyze the characteristics of nursing work. Such work is part of the service provision sector with peculiarities. The essence of nursing work is care, which is exercised mostly in collective and institutional spaces. Another feature is that technological incorporation does not represent labor force savings. In the production of care, work and consumption occur in the same act. Likewise, it is predominantly female work(²), and, as such, has its social recognition marked by this trait in a still patriarchal society(³).

Furthermore, nursing work, under the influence of the Fordism-Taylorism model, divided labor activity into partial tasks, leading to the technical division of nursing work between different professional categories with differentiated insertion and training (assistants, nursing technicians and nurses). It is worth noting that nursing represented, until August 2021, a national contingent of 2,555,020 (including 334 midwives in this amount)(⁴); however, despite this, it still shows little power political in the arena of negotiation of labor rules(⁵).

Thus, nursing work, as a rule, is poorly paid, being performed predominantly in precarious conditions, due to the scarcity of materials, lack of personal protective equipment, excessive workload and lack of decent spaces to rest in long shifts(⁶). In this sense, it is a job that needs protection from the State, with laws that support the weaker side of this relationship. The labor reform meets this need, with a negative impact on nursing labor relations, weakening and further weakening a fundamental labor activity for the quality of health services and for safe care for society(⁶).

From this angle, a question emerged from this group of researchers, which was characterized as follows: there are labor claims judged in second instance, i.e., assessed by the judiciary in an appeal, which were filed by nurses and motivated by the changes that occurred after the 2017 labor reform?

From this context, this study delimited as its objective to analyze the repercussions of the Brazilian labor reform for nurses and its implications for nursing work.

METHOD

Design of Study

This is an exploratory-descriptive study. This type of study, with a qualitative approach, aims to investigate current phenomena(⁷,⁸), developed in real contexts, being useful to investigate new events such as the labor reform. Furthermore, case studies make it possible to analyze how the event occurs in practice and observe elements of the phenomenon that one wants to research.

Case Selection Criteria

Cases should contain decisions and involve nurses, as well as aspects of labor rights, which were linked to labor reform. Cases that did not have decisions in second instance, i.e., in appeal actions, are excluded.

The collection took place until the identification of at least two cases, in which nurses were in search of labor rights. We opted for the quantitative of at least two cases, in order to obtain greater diversity of data to analyze; however, the authors(⁷,⁸) who investigate the methodology of the case study assert that a phenomenon can be researched based on in a single case, as long as it is useful for understanding the object of study.

Data Collection

Data collection was carried out in secondary databases of the Regional Labor Courts (TRT) in Brazil, accessed online and in numerical order (1^st, 2^nd, 3^rd, 4^th regions…), until the proposed objective was reached, namely: find at least two cases, according to the aforementioned criteria.

Two researchers who, in addition to nurses, are lawyers, were responsible for data collection, carried out simultaneously between the months of August and September 2020. The collection was ended at the 4^th region, as two processes were found that included the listed criteria.

The 4^th region is competent to examine ordinary appeals and petitions, collective bargaining, rescission actions and injunctions of the state of Rio Grande do Sul, headquartered in the city of Porto Alegre (RS).

A form produced by the authors was used, containing the following aspects that guided the search for documents and data extraction: locations where lawsuits were distributed; dates that the lawsuits were filed; case numbers; reasons that justified the court rulings; parties involved in legal proceedings; and outcomes of these actions. Throughout the research, there was no need to change the previously established form, as it met the proposed objective. The data obtained through the form were presented case by case, in the results section, according to the following topics: i) reasons for court rulings; ii) outcomes of actions involving nurses in the legal dispute; and iii) consequences of labor reform in the context of nurses’ work.

Data Analysis

Based on the theoretical framework of workers’ health, which provided conceptual support for analysis and discussion of the phenomenon investigated, three procedures were established for analyzing the collected data: i) synthetic description of selected cases, focusing on content that allowed understanding of the punctuated problematic; ii) subsequently, the content of court decisions was compared with the legislation and content of labor reform; and iii) then, from the theoretical framework of workers’ health, which provided the analytical categories (work precariousness, working conditions, management models and worker distress), the following themes were elaborated: Labor insecurity as a result of labor reform from greater exposure to unhealthy activity; Reduced conditions and safety at work due to loss of rights. These themes highlighted the consequences of labor reform in the context of nurses’ work.

In order to increase data analysis reliability and credibility, it is noteworthy that the triangulation of researchers was considered, aiming at “detecting and minimizing biased views resulting from the researcher’s human condition”(⁹), enriching and complementing knowledge(¹⁰). The triangulation of researchers was present in research planning, search and data analysis.

It should be noted that the study was based on the Standards for Reporting Qualitative Research (SRQ), considering its recommendations for the development and description of a qualitative and descriptive research.

Ethical Aspects

As recommended in the principles of good conduct in scientific studies, the ethical precepts of research were respected. Pursuant to Article 1, sole paragraph, II of Resolution 510 of 2016, research using publicly accessible information will not be registered or assessed by the CEP/CONEP system.

RESULTS

Two cases were captured that dealt with: 1) lack of prior inspection for unhealthy work and 2) expansion of nurses’ work hours without overtime pay. Chart 1 summarizes the information about these cases and, afterwards, a brief description of the cases is presented.

Chart 1.
Summary of information on identified cases. Rio de Janeiro, RJ, Brazil.

Case 1

The claimant (nurse) was active from January 2015 to October 2018. In the employment contract, there was a change from a 36-hour weekly regime to a 12 × 36-hour on-call regime. Despite the provision by law, the respective prior inspection by the competent public authority to verify the health and safety conditions at work was not carried out. From this perspective, in case 1, there was a precariousness of nursing work based on labor reform foundations, due to the absence of inspection by a competent authority in the hospital environment, supported by the new law.

First instance: the company (hospital) changed nurses’ work regime from a 36-hour-week contract to a 12 × 36 on-call duty, without the proper formalization of prior inspection by the competent public health authority. The sentence is based on the following: in its defense, the defendant (hospital) produces pre-constituted documentary evidence of a workday completed by nurses throughout the contract.

According to the time controls attached to the process, the claimant (nurse) worked 36 hours per week, when she started to work 12 × 36 hours. In this case, in addition, it is worth noting that the bank of hours modality was in force throughout the employment contract. This means that the nurse, upon joining the company, could work two hours more per day and be compensated later, without characterizing overtime. It was decided to cancel the 12 × 36 hours regime, due to the absence of prior inspection, and hours worked in excess of the previous regime were converted into overtime.

Second instance: until 11/10/2017, it was considered that, in unhealthy activities, it is only permissible to adopt a time compensation regime, regardless of its modality (weekly work, 12 × 36 or bank of hours), upon express authorization from the competent authority in matters of occupational hygiene and safety, since the requirements established in the aforementioned legal provision cannot be met by collective bargaining, as this is an issue pertaining to occupational hygiene, safety and health.

In the case under judgment, it is undisputed that the claimant (nurse) worked in conditions harmful to health, as the respective unhealthy work premium (in medium degree) was always paid. Thus, in the absence of proof of the existence of prior inspection by the competent authority, the compensatory regime adopted (12 × 36 and bank of hours) must be considered irregular, and compensation for overtime hours for the period worked in the 12 × 36 hours regime is applicable.

From 11/11/2017, the change made in the work regime by the hospital is valid. Therefore, the date of entry into force of Law 13,467/2017 on the labor reform exempts the need for prior inspection by the competent health authority for the time compensation regime (bank of hours and 12 × 36 hour regime) in unhealthy activity. In this case, the contractual termination took place on 10/31/2018. It was possible to cancel the 12 × 36 working hours and bank of hours, applying as compensation the differences of the canceled regime, converting the period of the contract prior to labor reform into overtime. In the period after the labor reform, there is no indemnity left, as the new law allows for the condition of changing the work regime without the prior inspection that was previously prohibited.

It is noteworthy that, after the labor reform, there were losses for nurses, both pecuniary and protection against occupational risks in that environment. Notably, there was a precariousness of work, by exposing workers to unhealthy conditions without due compensation. The absence of the need for prior inspection in the environments provided relevant elements for discussion in the above case, providing the creation of a theme for the case.

Case 2

The claimant (nurse) worked from 03/02/2012 to 09/23/2018. It states that, during the contract term, the work period for rest/lunch was not used in full. Thus, it requested the payment of the aforementioned periods of workdays that were not used in their entirety, as overtime throughout the contract. It also requested in the process that the new rules brought by Law 13,467/17 were not applied to its employment contract.

Thus, in case 2, it was observed that there was a change in the new law in relation to the workday period (lunch and rest), bringing losses to workers. It was then allowed to withdraw the conversion of payment of unused time into full overtime for time (minutes) not used. In this way, the different instances of processing of the process can be seen below, which favored the encouragement of fractionation of lunch breaks. This finding brought elements for the creation of the theme of the case, clearly showing the reduction of work conditions and safety.

First instance: the first instance judgment understood that Law 13,467/17 should be applied immediately to employment contracts in force on the date of its validity, in a non-retroactive manner, respecting the acquired right, the perfect legal act and res judicata.

Second instance: the claimant appealed to the 4^th regional court for overtime arising from breaks during work shifts (lunch and rest), as she did not accept the deferral of overtime only in relation to the suppressed period, prior to the labor reform.

Thus, we sought to condemn the defendant (hospital) to pay the full amount of hours subtracted from work shift breaks, during the period of the entire contract. Upon examination of the case, the court’s decision recorded: the hours of breaks during work shifts were recorded and included in the time cards; it was found, however, that on some occasions there was no annotation of the break, assuming that it was not actually used. However, the infringing of the intra-day break was proven in relation to the previous labor reform period (Law 13.467/17). It is strictly necessary to pay overtime for their suppression, observing the provisions of Article 58, § 1, of the CLT.

Finally, the court maintained the understanding of first instance that, from 11/11/2017 until the end of the contract, due to the new wording of paragraph 4 of Article 71 of the CLT, the defendant will be paid only in relation to the unused difference. As indemnity for the suppression of work break, in accordance with the time cards, observing the provisions of Article 58, § 1, of the CLT, it determined that only the payment of the unused difference was made, in the form of hours extras. In other words, all the unused minutes are added up, converted into hours and paid as compensation.

It was observed, with the case description, the reduction of conditions and safety at work, due to the reduction of work breaks and the time allocated to them. It appears that such an outcome will encourage the business community to split the lunch hours of employees, since they no longer need to indemnify as full hours not enjoyed. From this perspective, such a situation can cause insecurity at work, due to the lack of minimum rest necessary for the worker to recover energy for a new work shift.

DISCUSSION

The results show nurses’ loss of rights after the labor reform; in the above cases, the absence of prior inspection in unhealthy activities and permission to split lunch hours, which aggravates the work context that was already in high precariousness in progress before the reform.

Labor Insecurity as a Result of Labor Reform from Greater Exposure to Unhealthy Activity

Precariousness is understood as the sum of all hostile developments for workers and for their health. It is a result of numerous models, systems and legislation that change the world of work, serving primarily the interests of employers and not those of employees. Thus, there are inadequate working conditions, low wages, exhausting working hours, flexible employment relationships, where the worker has no guarantees about the future. Moreover, there are strong demands for productivity, attributing increasingly higher goals to professionals, which generates psychophysical distress and illness in these workers(²,³,⁵,⁶).

This gloomy picture was recognized by the Ministry of Health, which launched, in 2006, the Brazilian National Program for Deprecating Work in SUS (Programa Nacional de Desprecarização do Trabalho no SUS) as a strategy to improve professionals’ working conditions. This fact was also corroborated by the global Nursing Now campaign, launched in 2018, which aims to maximize the contribution of nursing in facing the health challenges of the 21^st century, contributing to an increase in nursing work valuation. However, the cases presented reveal that such precariousness tends to become more acute, as several labor rights were put in check by the labor reform(⁵,⁶).

It is asserted that, in relation to nursing work, this precariousness, which adds to the little professional recognition and social valuation, is nonsense, as it is a profession of extreme importance to society, acting in the different health-disease process stages. From this angle, a sick population has a negative impact on the economy, politics, security, and, at the individual level, it has numerous repercussions, which make a full life impossible(¹¹,¹²).

Nursing work presents itself with several attributions within the health team. In this context, nurses develop their work activities performing various functions that often go beyond the hours contracted, due to the high demand required(¹¹). They often work in health establishments exercising their attributions through different types of workload, i.e., they work six, eight, twelve and up to 24 hours within the working day. Furthermore, they work in environments that are often unhealthy and with a high degree of exposure to occupational hazards, which once again reinforces the profession’s precarious context in Brazil(¹¹), exposing nurses to greater occupational risk in activities considered unhealthy.

Unfortunately, this reality repeats itself around the world. In a hospital in Nepal, when investigating nurses’ health maintenance practices, it was observed that these professionals did not present good health practices, alleging work overload, lack of working conditions, unhealthy environments, lack of time to perform tasks and psychological stress in the work environment(¹²).

Also at the international level, at the University of Australia, when investigating shift work in nursing, it was realized that this type of work can compromise workers’ health, due to increased stress, exhaustion, dissatisfaction with work, among others(¹³).

Nursing work process’ precarious conditions can cause imbalances in nurses’ health, a situation that is aggravated by the limitation of time for self-care and low compensation for the work undertaken(¹⁴).

With regard to working hours, although nursing professional associations are fighting for the approval of Bill 2.295/2000, which is being processed in the Federal Chamber and establishes the regulation of a 30-hour week for nurses, technicians and nursing assistants, the reality that the practice has shown is a multi-employment culture among nursing workers as a result of the low wages received by the category, which corroborates the precariousness of work in this sector. This is a sensitive topic, especially when dealing with content such as working conditions, workload, which generates stress and strain among workers(³,¹⁵).

Health professionals are exposed do numerous stressful and wearing situations resulting from the everyday contact with frail or sickened people, besides having to deal with tense interpersonal and hierarchical relationships in health institutions. Working at a hospital requires a high level of collaborations amongst several professionals, from different areas of expertise and positions in the network of patient care, demanding a coordinated and collective work effort. Working shifts and duties also contribute to the cognitive and emotional overload of health professionals who work in this scenario(¹⁶).

In this way, these professionals, in general, fulfill the 36 hours per week distributed in shifts of 12 ṡ€36 or 12 ṡ€60 hours. These working hours were established by collective labor agreements and are justified by professionals being exposed to biological, physical, chemical, ergonomic and accident risks in their work environment(¹⁷), contributing to the illness of the category, which motivated the elaboration of a Bill (2,295/2000), which proposes the reduction of a weekly nursing workload to 30 hours(¹⁷).

From this perspective, it is confirmed that nursing work’s characteristics can be harmful to workers, if they are not managed through routines and protocols based on the knowledge on which the safety rules at work are based(¹⁸). It is worth considering that these characteristics have repercussions for employees, for employers in health and for society, as they affect the quality of care provided(¹³). Therefore, it is a job that requires extra attention from the labor inspection agencies(¹⁷).

Contrary to nursing workers’ desires in Brazil for better working conditions, the labor reform (Law 13,467)(¹)was approved in 2017, generating negative repercussions on nurses’ work, due to the flexibilization of the protective norms for workers in nursing. In the cases presented, due to legal certainty, the new legal rule in force is being applied(¹).

It is worth considering that the new regulation, with the justification of the possibility of increasing jobs, brought flexibilization of work with lack of labor protection, which results in more precariousness at work, which, in a way, is disheartening, because of working conditions that were already unsatisfactory and sometimes unsustainable before the reform.

The labor law (CLT) provides for prior inspection or prior license by government agencies in work environments with any degree of unhealthy conditions (minimum, medium or maximum). However, after the approval of labor reform, the need for prior leave by the government for the beginning of the work hour in the employment contract is only foreseen for the maximum grade(¹⁹,²⁰). As a result, there was a reduction in worker protection by the State, exposing professionals to occupational risks.

Reduction of Conditions and Safety at Work Due to Loss of Rights

In the health context, the appeal for productivity and business vision should be viewed with caution, due to the characteristics of this work activity. Health work does not produce merchandise, configuring a service provision, as workers sell their workforce for health care, and the principle of human dignity must be respected, as provided for in Article 1 of the Magna Carta from 1988.

However, what is observed are precarious working conditions and incipient safety at work, resulting in greater wear and tear on workers and exposing them to occupational risks(²¹). With regard to working hours, for example, the labor law (CLT) provides for a one-hour lunch break in the workplace(²⁰). However, after the approval of the labor reform, there was permission to split the time allocated for lunch. As a result, there was a reduction in worker protection by the State, exposing professionals to occupational risks. In this sense, breaks at work are necessary to replace energy for the next shift, reducing the probability of accidents, affecting work safety and even quality of life at work(²²).

In this line of thought, the repercussions of unsatisfactory working conditions and exposure to occupational risks are of concern in nursing. Illness due to stress and burnout are frequent in the profession. Burnout is defined as a psychological syndrome resulting from chronic interpersonal stressors at work, characterized by emotional exhaustion, depersonalization and decreased personal fulfillment. Workers lose the sense of their relationship with work and make things no longer matter. It is noteworthy that the flexible norms of health work will probably have negative repercussions for nursing work activity, contributing to the development of this syndrome in health professionals(²³).

Internationally, especially in Switzerland and Nepal, this concern is constant. In addition to the high rate of illness among professionals due to unsatisfactory working conditions, studies carried out in these countries show that, if something is not done, the largest health workforce may succumb(²³). Thus, the call is for workload reduction and a satisfactory compensation of nurses(¹²). In this case, the State protection guaranteeing rights is a way to solve these conflicts.

In Poland(²⁴), researchers, when investigating nursing job satisfaction, well-being and quality of life, highlight that the shift system is one of the factors that negatively influence nurses’ quality of life, as it presents risks for the safety of workers and patients. Shifts considered long (12 hours or more) and irregular working hours are identified as risk factors for nurses.

Due to precarious working conditions in Poland, it was recommended that managers invest in nursing worker safety and professional satisfaction through the guarantee of labor rights, i.e., greater protection for workers(²⁵).

In Brazil, in relation to the application of modified standards that make worker safety more flexible and considering the already precarious work context, exposure to occupational risk may cause work accidents and errors during patient care. Therefore, security is a necessary investment for health organizations as well as the guarantee and maintenance of rights are fundamental for this to be effective.

It is understood as a contribution of this study the reflection on the labor reform repercussions and its implications for nursing work. Thus, it is increasingly necessary to discuss the topic, as it brings new elements to the world of work, especially because it causes changes that can also negatively affect nurses’ well-being and quality of life. Furthermore, this theme is little or nothing debated in the professional collective, not least because it is recent and still considered a novelty. Therefore, this study can help to socialize and deepen the theme of labor reform and its repercussions for work and for nursing professionals, equipping these workers to adequately claim their rights in the labor area.

A research limitation is the reduced number of TRT studied and the focus on cases of working hours. It is recommended to expand the search to other TRTs, as well as to other labor reform aspects, which interfere with nurses’ work.

CONCLUSION

The cases identified by this study show the loss of rights regarding the absence of prior inspection in unhealthy environments for changing working hours, waiver of indemnity and split lunch hours, favoring greater exposure of nurses to occupational risks, due to unhealthy working conditions, insufficient work breaks and, sometimes, without due financial and symbolic compensation. In addition to this, there is a workload incompatible with maintaining a good quality of working life.

The implementation of new rules resulted in the loss of labor rights, with evident damage to nursing workers. It is believed that the dissatisfaction of these workers will increase and may result in high professional evasion.

Furthermore, the emptying of collective actions and the reduction of State protection in labor activities, leaving workers at the mercy of occupational hazards, aggravate the precariousness of nurses’ work.

With the labor reform, it is believed that the dissatisfaction of health workers and, above all, of nurses, will increase. The flexibilization of protection rules will allow greater exposure to occupational risks and, therefore, high professional illness. In this wake, it is necessary to rethink the application of such standards to nursing workers, especially because their work requires expertise, attention and technical capacity to offer quality services to society and safety for those being cared for. Furthermore, it is believed that judicialization tends to increase in the context of health work in Brazil, due to the new regulation provided for in the 2017 law.

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Publication Dates

• Publication in this collection
  24 Nov 2021
• Date of issue
  2021

History

• Received
  22 May 2021
• Accepted
  16 Oct 2021