Retail work on public holidays: what changes with MTE Ordinance 1,316/2026

Brazil's Ministry of Labor and Employment (MTE) has issued a new ordinance reorganizing the rule on retail work on public holidays. For the retail employer, it is worth separating what actually changed, what already existed, and what needs to be done before the next holiday.

What the new ordinance does

MTE Ordinance 1,316/2026 revokes Ordinance 3,665/2023, which never took effect due to successive postponements, and consolidates the matter, also amending Ordinance MTP 671/2021. Among the adjustments, it expressly defines the activities that retain permanent authorization, regulates the procedure for municipalities without a representative union, and provides that future changes to the list of exceptions will depend on tripartite consultation involving workers, employers and the government.

The core rule: collective bargaining agreement

As a rule, the operation of commercial establishments on holidays depends on authorization provided for in a collective bargaining agreement, negotiated between the employers' union and the employees' union, except for essential activities or those already covered by permanent authorization.

What the ordinance did not invent

Here is a point that avoids a mistaken reading: the requirement of a collective agreement is not a novelty of the ordinance. It reaffirms what Article 6-A of Law 10,101/2000 already established, namely that retail work on holidays depends on a collective agreement and on compliance with municipal legislation. What the new rule corrects is the distortion of Ordinance 671/2021, which had come to unilaterally authorize opening on holidays, against the law. The novelty is the regulatory act; the underlying requirement is old.

Who needs an agreement and who is cleared

The distinction that matters most to the employer:

• General retail (ordinary stores), such as street and mall shops: to open on a holiday, it needs a category collective agreement authorizing it, and under the conditions the agreement sets.
• Essential activities or those with permanent authorization: remain cleared regardless of an agreement. These include, for example, bakeries, pharmacies, bars and restaurants, gas stations, hotels, florists, open-air markets, funeral services and travel agencies.

Municipalities without a representative union

And what if there is no union to negotiate the agreement? The rule provides a way out: the agreement may be signed at a higher level, by the federation and, in its absence, by the confederation of the category (Article 611, § 2, of the Labor Code). The requirement of a collective norm does not fall away; it is simply negotiated one level up.

Paying for the holiday worked is a separate matter

Two things should not be confused. Authorization to open is one; paying the employee who works on the holiday is another, and that is an old rule. A holiday worked without a compensatory day off must be paid double (Article 9 of Law 605/1949; Precedent 146 of the TST). Paying correctly does not replace the collective authorization. They are distinct requirements, and missing either one creates exposure.

What the employer should do

Before the next holiday, the safe path is to:

• Check whether the activity is among those with permanent authorization.
• If not, verify whether the category's collective agreement authorizes opening on holidays and under what conditions.
• Observe the applicable municipal legislation.
• Ensure correct payment for those who work, with a compensatory day off or double pay.

Opening without this basis, outside essential activities, is irregular and usually leads to MTE penalties, double pay for the holidays and claims later on.

How the firm works

Analyzing the applicable collective agreement, advising on holiday operations and defending retail companies in penalties and claims are part of the firm's corporate employment practice. Each case, however, depends on its own circumstances, the facts and the documents.

Conclusion

Ordinance 1,316/2026 does not create a requirement out of nothing. It puts the law back on track and organizes the exceptions. For retail, the practical message is direct: opening on a holiday, outside essential activities, depends on a collective agreement. Checking this before setting the holiday calendar avoids a liability that tends to appear precisely when the company least expects it.

Reference basis for review

• MTE Ordinance No. 1,316/2026, which regulates retail work on public holidays, revokes Ordinance 3,665/2023 and amends Ordinance MTP 671/2021.
• Law 10,101/2000, Article 6-A (retail work on holidays: collective agreement and compliance with municipal legislation).
• Labor Code (CLT), Article 611, § 2 (negotiation by the federation or confederation where there is no representative union).
• Law 605/1949, Article 9, and Precedent (Súmula) 146 of the TST (double pay for a holiday worked without a compensatory day off).
• Brazilian Bar Association Rule (Provimento OAB No. 205/2021), to preserve the informational nature of the content.

Content of a merely informational nature. It does not constitute legal advice, an offer of services or a promise of results. Any concrete analysis depends on the facts, the documents and the context of each case.