Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

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

The Committee notes the Government’s report. It also notes the Government’s observations on the communication of 10 October 2002 from the Single Confederation of Workers (CUT), raising two matters on which the Committee had been commenting for several years (the use of the "dissídio coletivo" procedure as compulsory arbitration by the judicial authority, and the need to ensure that public officials who are not engaged in the administration of the state have the right to bargain collectively).

With regard to the possibility for one of the parties to the collective bargaining or for the authorities to resort to a "dissídio coletivo" (compulsory judicial arbitration; section 616 of the Consolidation of Labour Laws (CLT)), the Government states that: (1) the decisions of the High Labour Court show a downward trend in "dissídios coletivos" from the second half of the 1990s (statistics appended to the report record a decline in their number from 2,725 in 1990 to 713 in 2001); and (2) Bill No. 623/98, under which the policy-setting powers of the labour courts were to be revised and recourse to "dissídio coletivos" was to be made voluntary, was shelved by the Executive and the National Congress has before it a new bill (No. 16/84) the aim of which is to secure adoption of the text of Convention No. 87. In these circumstances, the Committee hopes that section 616 of the CLT will be amended so as to restrict recourse to arbitration by the judicial authority to cases in which both parties request it, and to essential services in the strict sense of the term or to acute national crises. The Committee requests the Government to report on any developments in this area.

With regard to the comments the Committee has been making for several years, and to which the CUT refers, concerning the need for public employees who are engaged in the administration of the State to have the right to bargain collectively, the Committee notes that according to the Government: (1) public employees do not have the right to bargain collectively because under the Constitution their remuneration can be set or modified only by specific legislation; (2) as stated previously, an administrative reform is under study with a view to establishing several schemes for recruitment in the public administration, allowing certain categories of public servants to negotiate collectively to fix their conditions of employment, as is already the case in state enterprises and joint venture companies; (3) in accordance with the tendency of the case law, the High Labour Court endorsed the interpretation that public employees do not have the right to conclude collective labour agreements. The Committee accordingly asks the Government to provide information in its next report on any measures adopted to ensure that public employees who are not engaged in the administration of the State have the right to such collective bargaining.

The Committee notes that the Government has not responded to its comments on the need to repeal section 623 of the CLT under which provisions of an agreement shall be declared void where they are contrary to the standards established by the government economic and financial policy or the wage policy in force. In the Committee’s view, restrictions of this kind affect the independence of the social partners in the collective bargaining process and are not such as to encourage voluntary collective bargaining between employers or their organizations and workers’ organizations for the purpose of setting conditions of employment. The Committee accordingly asks the Government to take steps to secure the repeal of the abovementioned provision.

Lastly, the Committee notes with interest that, according to the Government, a National Labour Forum has been set up to review the labour and trade union legislation. The Forum will be attended by social players who have links with the world of work and its main objective will be to democratize labour relations and adapt the legislation to the new realities of the labour market by encouraging the adoption of a system of freedom and independence for trade unions in keeping with the conventions and recommendations of the ILO. According to the Government, it is hoped that when the work of the Forum has been completed, all the current legislative obstacles to full freedom of association and collective bargaining will have been overcome. The Committee hopes that the National Labour Forum will complete its work in the near future and that account will be taken of the comments it has been making for several years, in order to bring the legislation into full conformity with the Convention.