Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Brazil (Ratification: 1952)

The Committee notes the Government's report and the comments supplied by the National Confederation of Land Transport in September 1987 and by the National Confederation of Industry in October 1987 on the application of the Convention.

The Committee notes the adoption of the new Constitution of 5 October 1988, and in particular of articles 7, 8 and 9, which enshrine the principle of collective bargaining and the right to strike, which can be restricted in essential services defined by law.

1. Protection of workers against acts of anti-union discrimination ( Article 1 of the Convention). The Committee notes with satisfaction that Act No. 7543 of 2 October 1986, amending section 543(3) of the Consolidation of Labour Laws (CLT), extends the duration of the prohibition on dismissing an employee who has held trade union office from 90 days to one year, after completion of his period of trade union office. Furthermore, the principle that a trade union official cannot be dismissed, except in the event of a serious offence, during the period laid down by Act No. 7543, is included in the new Constitution (article 8).

2. In its previous observation, the Committee asked the Government whether the following provisions, which have been the subject of its comments for several years, were still in force:

- the possibility of excluding from the scope of agreements enterprises demonstrating their economic inability to support the wage increases and the authorisation accorded these enterprises not to grant (automatic) wage increases (section 11(2) and (3) of Act No. 6708);

- the wide powers vested in the authorities to cancel collective agreements or arbitration awards which do not conform to the standards fixed by government wage policy (Consolidation of Labour Laws, section 623, as amended by Legislative Decree No. 229 of 28 February 1967 and section 8 of Act No. 5584 of 26 June 1970);

- interference by the Government in respect of collective bargaining and collective wage increases in mixed-economy enterprises and private enterprises subsidised by the State or holding concessions from public services, these enterprises being entitled to conclude agreements only "within the terms of the resolutions of the National Council on Wage Policy" (section 12 of Act No. 6708 of 30 October 1979).

Right of workers to freely negotiate their terms and conditions of employment (Article 4 of the Convention). The Committee notes, from the Government's report, that the number of collective agreements is increasing regularly and that collective bargaining is the most favoured procedure for resolving industrial disputes.

The Committee refers to Legislative Decree No. 2335 of 12 June 1987, and notes that the free negotiation of terms and conditions of employment is reaffirmed in section 9 of the Decree, although the collective bargaining of wages is restricted by law (section 8 of Legislative Decree No. 2335), as emphasised by the National Confederation of Land Transport in its comments. The Committee also notes the Government's efforts to associate the social partners with its economic policy, which resulted in the signature of an anti-inflationary agreement with all the social partners except for the CUT.

The Committee, however, understands, from the information available, that since the adoption of these measures the Government has reverted to a policy of freezing wages and prices.

The Committee is aware of the economic difficulties that the Government has to face. However, referring to the principles set out in paragraphs 303 and thereafter of its 1983 General Survey on Freedom of Association and Collective Bargaining, it recalls that trade unions must have the opportunity to negotiate wages freely with employers and their organisations without being unduly hampered by legal restrictions. If, for compelling reasons of economic policy, restrictive measures are imposed respecting wages, procedures should be envisaged to associate all the social partners with the formulation and implementation of the desired policy.

The Committee hopes that the Government will return in the near future to the principles of free collective bargaining and that, in this connection, it will re-examine the various provisions which were the subject of its previous comments, and which still appear to be in force (section 623 of CLT; section 11(2) and (3) of Act No. 6708).

The Committee therefore requests the Government to continue supplying full information on the measures that have been taken or are envisaged, within the framework of its wages policy, to extend the scope of collective bargaining concerning wages and/or to associate the social partners with the above policy.

The right of workers in certain public sector enterprises freely to negotiate their terms and conditions of employment (Article 4 of the Convention). The Committee notes that under the terms of section 7 of Legislative Decree No. 2425, of 7 April 1988, public enterprises, mixed-economy enterprises and private enterprises subsidised by the State or holding concessions from public services may only conclude collective agreements within the terms of the resolutions of the National Inter-Ministerial Council on Wages in Public Enterprises (CISE) or, where appropriate, by the Inter-Ministerial Wages Council (CIRP), taking duly into account section 623 of the CLT, as referred to above.

The Committee points out that this provision, which, in principle, reiterates section 12 of Act No. 6708 of 30 October 1979, which has been the subject of previous comments, constitutes interference by the Government in collective agreements and collective wage increases. It requests the Government to supply full information concerning the measures that have been taken or are envisaged in order to grant workers in these enterprises the right to bargain freely, in accordance with Article 4 of the Convention.

3. The right of workers other than public servants engaged in the administration of the State to associate in order to bargain collectively (Articles 4 and 6 of the Convention). In its previous comments, the Committee noted that the right to associate, and therefore to bargain collectively, was not granted to persons employed by the State and in state institutions, except for those in mixed-economy enterprises, under section 566 of the CLT, as amended.

In its report, the Government states that the bill to guarantee the right of association and the right to strike for persons employed directly or indirectly by the public administration is about to be adopted, in accordance with article 37 of the new Constitution.

Recalling that the exercise of the right to strike should not be restricted except in essential services in the strict sense of the term, namely those whose interruption would endanger the life, personal safety or health of the whole or part of the population and in relation to public servants acting in their capacity as agents of the public authority, the Committee notes this information with interest and requests the Government to continue supplying information on the progress achieved in this respect and to supply the text of the above-mentioned bill.

4. In its previous observation, the Committee noted that a bill respecting collective bargaining and the right to strike had been submitted to the Chamber of Deputies. The Committee notes, from the information supplied by the Government, that this bill is currently being revised following the adoption of the new Constitution. The Committee requests the Government to supply information in its next report on the progress achieved in this respect.