Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

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

The Committee notes the Government’s reply to the comments of the International Trade Union Confederation (ITUC) of 2007 on the murder of leaders of rural workers’ organizations and of one trade unionist in the footwear sector, and particularly that judicial investigations have been initiated into these matters. The Committee notes the comments of the ITUC of 26 August 2009, which refer to matters already raised by the Committee, such as acts of repression by the police against demonstrators, attacks against trade union premises and the homes of trade union leaders, anti-union dismissals and failure to comply with collective agreements. The Committee also notes the comments of the Workers’ Union of the Electrical Energy Industries of the North and Noroeste Fluminense (STIEENNFF) alleging that an enterprise in the energy sector unilaterally modified standards agreed with the unions. Finally, the Committee notes the comments of Força Sindical, Noca Central dos Trabalhadores do Brasil, the General Union of Workers, the Single Confederation of Workers, the Confederation of Men and Women Workers of Brazil and the General Confederation of Workers of Brazil, dated 3 September 2009, on the application of the Convention. In particular, it notes with concern the allegations concerning the murder of 11 trade unionists between 1993 and 2009 and the attempted murders of trade unionists. The Committee requests the Government to provide its observations on this matter and to ensure without delay that investigations are launched into the allegations of violence with a view to elucidating the facts and punishing those responsible.

Article 4 of the Convention. Compulsory arbitration. In its previous observation, the Committee noted the Government’s indication that: (1) under Constitutional Amendment No. 45 of 8 December 2004 (reform of the judiciary, amendment to article 114), it was established that a collective dispute (dissidio coletivo) may only be determined with the agreement of both parties (the intervention of the judiciary cannot be requested unilaterally); (2) the draft trade union reform, prepared in the context of the National Labour Forum (FNT), envisages as one of the priorities the promotion of collective bargaining at all levels and in all spheres of representation, removing dialogue between workers and employers from the scope of the State; and (3) under the trade union reform, labour tribunals are designed to become bodies for the voluntary settlement of disputes (the Government indicated that the discussions in the FNT led to the consolidation of a proposal for a Constitutional Amendment, which is before the National Congress, and a preliminary draft of industrial relations legislation). The Committee requested the Government to provide information on any developments relating to the draft trade union reform, and particularly any provisions adopted in relation to arbitration as a means of dispute settlement, and to supply statistical information on the number of collective disputes (dissidios coletivos) dealt with by the labour tribunals since the adoption of the Constitutional Amendment of 2004.

In this regard, the Committee notes the Government’s indication in its report that: (1) with reference to the draft trade union reform, the proposed Constitutional Amendment is still under examination by the National Congress with a view to bringing an end to trade union unity and promoting collective bargaining; (2) Decree No. 186 was adopted under which the parties may discuss, in the context of the Ministry of Labour and Employment, disputes which arise in relation to the registration of trade unions, thereby allowing the Ministry to act as a mediator in the dispute; (3) the labour courts may only intervene in collective bargaining at the request of both parties to the dispute; and (4) with regard to the statistical data requested on collective disputes (dissidios coletivos), 714 were resolved in 2005, 561 in 2006, 792 in 2007 and 820 in 2008. The Committee requests the Government to indicate, if it is still possible in practice, to impose a dissidio coletivo (judicial compulsory arbitration) at the request of only one party and to provide information in its next report on the progress made with regard to the draft trade union reform referred to above.

Right to collective bargaining in the public sector. The Committee recalls that for many years it has been referring to the need, in accordance with Article 4 of the Convention, for public employees who are not engaged in the administration of the State to have the right to collective bargaining. The Committee notes the Government’s indication, as it reported previously, that there are constitutional limitations on the freedom of action of the public administration, which make collective bargaining in the public sector difficult, and it reiterates that in June 2003 the Standing National Negotiation Board (MNNP) (composed of the representation of eight ministries and all the representative bodies of federal public servants) was established with a view to seeking negotiated solutions to the issues raised by public servants and by the Federal Public Administration, formulating the legal regulations for a permanent system of negotiation, promoting discussions and negotiations of the harmonized guidelines concerning the claims of public servants, etc. Under these conditions, the Committee requests the Government to provide information in its next report on whether, as a result of the activities of the MNNP, there has been any change in terms of the possibility of concluding collective agreements covering public servants who are not engaged in the administration of the State, or whether other measures have been adopted to guarantee this right. Finally, the Committee notes the Government’s indication that a draft Legislative Decree for the ratification of the Labour Relations (Public Service) Convention, 1978 (No. 151) has been forwarded to the National Congress.

Subjection of collective agreements to the financial and economic policy. The Committee recalls that in its previous observations it also referred to the need to repeal section 623 of the Consolidation of Labour Laws (CLT), under the terms of which the provisions of an agreement or accord that are in conflict with the orientations of the Government’s economic and financial policy or the wage policy that is in force shall be declared null and void. The Committee notes the Government’s indication that, even though in 2007 two Bills to amend the above section were tabled in the Chamber of Deputies, the Bills were set aside. The Committee recalls once again that, except in exceptional circumstances required by economic stabilization policies, it is the parties to the collective bargaining process who are best placed to determine wages and should be the ones to do so. It therefore considers that the restriction contained in section 623 of the CLT affects the independence of the social partners during collective bargaining and impedes the development of voluntary collective bargaining procedures between employers or their organizations and organizations of workers for the determination of terms and conditions of employment. The Committee once again requests the Government to take steps to repeal the legislative provision referred to above and to inform it in its next report of any measure adopted in this respect.

The Committee is raising other points in a request addressed directly to the Government.