The need to create specific breastfeeding areas for employees of shops is a matter that has not yet been settled among the panels of the Superior Labor Court (TST). In September, over a few weeks, the court handed down judgments in diametrically opposed terms, in two cases whose claims were identical: the creation of space for safekeeping, security, and assistance for shop employees.

In a decision published on September 10, the 8th Panel of the TST ruled that shopping malls are not required to create such spaces and that it is incumbent on the employers (the stores in them) to meet that specific need. A few days later, on the 19th, the 2nd Panel of the same court issued a decision exactly to the contrary, published on the 28th, stating that the shopping mall "should ensure a place for breastfeeding for shop employees."

The matter is relevant as it may also apply to similar public spaces such as airports, commercial buildings, community markets, and shared offices.

Section 389, paragraphs 1 and 2, of the CLT establishes that every enterprise, in establishments where at least 30 female employees over 16 years of age work, must have an appropriate place for their children to stay during periods of breastfeeding:

“Article 389 - All companies are required to:
Paragraph 1 - Establishments in which at least thirty (30) women older than sixteen (16) years of age work shall have an appropriate place where employees are allowed to keep their children under supervision and assistance during periods for breastfeeding.
Paragraph 2 - The requirement of paragraph 1 may be met through district daycares maintained, directly or through agreements, with other public or private entities, by the companies themselves, under a community regime, or by the SESI, SESC, LBA, or trade union entities."

The heading of the article is intended for "companies." On the other hand, paragraph 1 establishes the obligation based on each "establishment." As paragraph 1 is found within article 389, the legislator’s idea was to think of each establishment of the company, since if a company has establishments in various localities in Brazil, it would not be imaginable to think only of the number of 30 employees in the company’s total.

In the context of judicial decisions, the 8th Panel, in the judgment on the appeal submitted in case number 1487-13.2015.5.23.0002, ruled that there was no obligation on the part of the shopping mall to establish a place for breastfeeding, on the grounds that "the shopping mall assumes only general obligations as to the safety of workers, provision of toilets, and places for meals, but specific labor obligations derive from the employment contract entered into between the individual business establishments and their workers."

The decision also states that "such an obligation is intended exclusively for the real employer, as is drawn from an exegesis of article 389, paragraphs 1 and 2 of the Consolidated Labor Laws” and that it would be an "improper procedure to add all the employees of the stores to those of the shopping mall for this purpose."

Differently, the decision by the 2nd Panel of the TST rendered in the judgment on an interlocutory appeal in a bill of review (case No. 131651-27.2015.5.13.0008) was a little more extensive. The main argument for entering a judgment against the shopping mall was the principle of the social function of the company and article 227 of the Constitution of 1988 (CF/88).

It was also argued that the controversy cannot be an obstacle to the realization of the right vindicated and that "for the shop owner, the lessee of the 'commercial space', almost no freedom is assigned, everything is rigorously directed towards a standardization of facilities, actions, and procedures necessary to the ends of the collective enterprise." That is to say, for the 2nd Panel, "it is not, therefore, as the appellant claims, a mere lease agreement, but rather a relationship in which there is a strong interference by the respondent in the activity of the shop owners." In this same sense, it was argued that "shopping malls are, in fact, a commercial supra-establishment", acting in a "supra-business activity."

Moreover, according to the appellate decision, the judgment is based on structural subordination in the network and not on the economic group between the shopping mall and the stores:

"There is, therefore, among the employees of the shop owners and the condominium what the legal doctrine calls structural subordination in the network, thus justifying, also under this viewpoint, the liability of the respondent. That is, it is not liability based on the recognition of the existence of an economic group, as the appellant alleges."

Finally, the judgment pointed out that the law should be interpreted on the basis of the current context, such that it obliges establishments, and not companies, with more than 30 employees to provide space for breastfeeding.

The controversy is complex. To interpret in an expansive manner the applicability of section 389 of the Consolidated Labor Laws would result in other consequences in the labor sphere, especially when the concept of an "establishment" is expanded. Thus, sites including various companies could be compelled to meet apprentice quota, PCD [Persons with Disability Quota], set up an SESMT [Occupational Safety and Medicine Service], and an Internal Accident Prevention Committee (CIPA), according to the number of workers in those locations, even if they are not direct employees of the company that owns the structure.

Although section 227 of the Constitution ensures, as a matter of priority, to children all the fundamental rights provided for constitutionally, this constitutional provision does not show itself to be sufficient to conclude that section 389 of the Consolidated Labor Laws is intended for those who are not the real employer.

Such a conclusion is reached especially considering that the concepts of employer and establishment cannot be expanded by the judge beyond the labor conceptualization of the terms.

After all, section 389 of the Consolidated Labor Laws covers the "company." In turn, section 2 of the same law considers as an employer to be "the individual or collective company which, assuming the risks of an economic activity, hires, pays, and directs the personal provision of services." In addition, by establishment is understood, according to section 74 of the Consolidated Labor Laws, each place for provision of services, unlike the entire enterprise, which would be considered as being a "company."

Considering that shopping malls (or airports, commercial buildings, port complexes, common markets, and shared offices) would not pay nor direct the personal services of the employees of the companies, whose establishments are located in the interior of their enterprise, the decision by one of the panels of the TST could be legally opposed in view of these arguments.