The STF returns to adjudicate Congress’s failure to address paternity leave in December

The STF returns to adjudicate Congress’s failure to address paternity leave in December


The action wants the federal legislature to regulate paternity leave, a right provided by the Constitution

The president of Federal Supreme Court (STF)minister Luis Roberto Barrosothe resumption of the trial which discusses the omission of the art. is scheduled for December 13th National Congress in the regulation of paternity leave in the country. Launched in 2020 in a virtual plenary, the process was interrupted by an important request made by Barroso himself, who forwarded the analysis of the case to the physical plenary.

Practically, the majority of ministers understood that the lack of legislation on the matter constitutes an “omission” on the part of the Legislature. It was seven votes to one. The debate remains over which measures should remain in force until Congress approves the relevant law and also if parliamentarians do not meet the deadline.



The STF deems unconstitutional a direct appeal for omission (ADO), presented by the National Confederation of Health Workers (CNTS) in 2012. The ADO’s thesis is the absence of legislation guaranteeing the right to paternity leave, provided for by the art. Constitution.

Meanwhile, article 10 of the Law on the final and transitional provisions of the Constitution prevails, which establishes that paternity leave must last five days “until the law regulates” the matter.

There is a 2008 law that allows the benefit to be extended for another 20 days, but only if the employer is linked to the Citizen Company Program, through which it receives tax incentives.

Ministers can review the votes in a new trial

Two ministers already retired Marcus Aurelius AND Rosa Weber, had already voted and therefore their votes will be retained. He, the speaker of the appeal at the time, voted against recognizing that the lack of legislation is an omission of Congress.

The minister Edson Fachin he favored the omission interpretation and established a period of 18 months for Congress to enact a law and regulate the right to leave for parents. Until the rule is approved, requests will have to be equated with the rights guaranteed by maternity leave, i.e. the 120 day rule. His vote was accompanied by the ministers CarmenLucia and Rosa Weber.

Barroso also voted to give parliamentarians 18 months to regulate the issue. However, he did not comment on an interim change pending regulation. After this period, if the omission persists, according to the minister, parity between maternity and paternity periods will come into force.

The minister The days of Toffoli proposed an 18-month deadline for regulating a law, but without imposing consequences for non-compliance. Alexander of Moraes AND Gilmar Mendes followed the vote. Ministers argued that the decision was important to ensure equal treatment of men and women in the labor market.

With the new vote scheduled for December, they will be able to review the votes and modify the agreements as they deem necessary.

Source: Terra

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