Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee notes the comments of the Union of Hotel, Bar and Allied Workers of São Paulo and Region (SINTHORESP) and the Confederation of Tourism Workers (CONTRATUH), dated 25 July 2011, alleging that trade unions were excluded from the process of negotiating the recruitment of workers with disabilities in an enterprise in the food sector. The Committee also notes the comments of the International Trade Union Confederation (ITUC), dated 4 August 2011, referring to matters already raised by the Committee, as well as allegations of anti-union dismissals and the murder of two trade union leaders and a trade union member. The Committee notes that the Government states, in reply to the ITUC comments, that it rejects any act of assault on the life and dignity of the worker and that, in this respect, the authorities responsible for the investigation of criminal acts carry out their duties in line with the principles of due process. The Committee notes this information and requests the Government to communicate the outcome of the judicial inquiries conducted in relation to the killings of the trade union leaders mentioned by the ITUC (as well as the alleged killings of 11 trade unionists between 1993 and 2009, denounced in 2009 by the Força Sindical, the Noca Central dos Trabalhadores do Brasil, the União Geral dos Trabalhadores, the Central Única dos Trabalhadores, the Central dos Trabalhadores e Trabalhadoras do Brasil and the Central General dos Trabalhadores do Brasil.

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 can no longer be requested unilaterally); (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; and (3) the labour courts may only intervene in collective bargaining at the request of both parties to the dispute. The Committee requested the Government to indicate whether it is still possible “in practice” to impose “dissidio coletivo” through compulsory judicial arbitration at the request of only one party and to indicate in its next report the progress made with regard to the reported draft trade union reform. Observing that the Government does not refer specifically to this matter in its report, the Committee reiterates its request.

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 that, with regard to public officials, the Labour Relations (Public Service) Convention, 1978 (No. 151), was ratified in 2010 and that a working group was established with the social partners in the Ministry of Labour to formulate legislative proposals to be sent to the Office of the President of the Republic and that a Bill and a draft constitutional amendment would then be submitted. The Committee welcomes this information and expresses the hope that the Bill will grant public employees who are not engaged in the administration of the State the right to conclude collective agreements. The Committee requests the Government to provide information in its next report on any progress in this respect.

Subjection of collective agreements to 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: (1) in the past, with a view to the protection of wages, clauses were included in collective agreements providing for automatic adjustment when inflation reached a certain percentage; (2) it was common that, while a collective agreement was in force, economic measures were adopted, accompanied by a new wage policy, and that accordingly the wage adjustment measures became incompatible with the rules for adjustment during the inflationary period; (3) in 2008, the Supreme Federal Tribunal issued a binding decision (“sumula”) prohibiting the use of the minimum wage as the index used as a basis for calculating the salaries of public officials or employees; and (4) in a socio economic context that differs from the time when an agreement was concluded, it cannot be expected that a clause that is incompatible with the new situation remains in force. The Committee notes this new information provided by the Government and 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 they should be the ones to do so, and that it considers that the restriction contained in section 623 of the CLT affects the independence of the social partners during collective bargaining and, when it is of a permanent nature, it 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 or constitutional provision that restricts the right to collective bargaining, and to provide information in its next report on any measure adopted in this respect.

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