Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

The Committee notes the observations of the National Confederation of Liberal Professions (CNPL), received on 15 September 2016, relating to matters examined by the Committee in this observation. The Committee also notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2014, relating to matters examined in the present observation, and also to allegations of anti-union discrimination, including dismissals, in a public enterprise in the state of Sao Paulo and a television broadcaster. With regard to these allegations, the Committee notes the Government’s indication that the Brazilian legal system has appropriate mechanisms to punish acts of anti-union discrimination when charges are brought. The Committee requests the Government to provide information on any decisions by the labour prosecution services and tribunals in the cases raised by the ITUC.

Article 1 of the Convention. Adequate protection against anti-union discrimination. The Committee previously observed that, in the context of various complaints examined by the Committee on Freedom of Association (Cases Nos 2635, 2636 and 2646) alleging acts of anti-union discrimination, the Government had indicated that “although freedom of association is protected under the Constitution, the national legislation does not define anti-union acts and this prevents the Ministry of Labour and Employment from taking effective preventive and repressive measures against conduct such as that reported in the present case”. Based on the information provided by the Government, the Committee expressed the hope that, in the context of the Labour Relations Council (CRT), it would be possible to prepare draft legislation explicitly establishing remedies and sufficiently dissuasive sanctions against acts of anti-union discrimination. The Committee regrets to note that the Government reports the absence of substantive progress in the preparation of the respective draft legislation. The Committee therefore once again requests the Government to take the necessary measures to ensure that the legislation explicitly establishes remedies and sufficiently dissuasive sanctions against acts of anti-union discrimination. The Committee requests the Government to report any progress achieved in this regard.

Article 4. Promotion of free and voluntary collective bargaining. Compulsory arbitration. In its previous comments, the Committee requested the Government to indicate whether it was still possible in practice to refer a collective dispute (dissidio coletivo) to compulsory judicial arbitration at the request of only one of the parties, and to provide information on developments relating to the draft trade union reform referred to in previous reports. In this regard, the Committee notes that the Government: (i) reaffirms that since the adoption of constitutional amendment No. 45 of 2004, judicial intervention in collective bargaining processes has only been possible where the parties are in agreement to request such intervention; and (ii) indicates that the proposed constitutional amendment No. 369/2005, intended to amend Articles 8, 11, 37 and 114 of the Federal Constitution with a view to promoting collective bargaining and bringing an end to trade union monopoly, is continuing to be examined by the National Congress. The Committee requests the Government to continue providing information on any developments relating to the examination by the National Congress of this Bill.

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 Articles 4 and 6 of the Convention, for public employees who are not engaged in the administration of the State to have the right to collective bargaining. In this regard, the Committee notes that: (i) the Government indicates that proposed constitutional amendment No. 369/2005, referred to above, also addresses collective bargaining in the public sector; (ii) the CNPL recalls that, under the current legal provisions, public employees engaged in public enterprises and mixed economy companies are governed by the Consolidation of Labour Laws (CLT) and, therefore, enjoy the right to collective bargaining, while public servants, who are subject to specific regulations, are not accorded this right in law; and (iii) various draft legislative texts to regulate collective bargaining in the public sector are currently before Congress. The Committee encourages the Government to take initiatives in legislative matters and trusts that the various legislative drafts and the constitutional amendment that are currently under examination will take fully into account the obligations deriving from the present Convention and from the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154). The Committee requests the Government to provide information on any progress in this regard and recalls in this context that it may have recourse to the technical assistance of the Office, if it so wishes.

Subjection of collective agreements to financial and economic policy. The Committee recalls that for several years it has been referring to the need to repeal section 623 of the CLT, under the terms of which provisions of an agreement or accord that are in conflict with the standards governing the Government’s economic and financial policy or the wage policy that is in force shall be declared null and void. The Committee has also been requesting the Government to take measures to amend Act No. 10192, of February 2001, issuing additional measures under the Plan Real, section 13 of which provides that automatic price index-related wage increases or adjustments may not be included in agreements, accords or dissidios coletivos. In this regard, the Committee notes that: (i) in its 2014 observations, the ITUC indicated that these provisions are used to impose restrictions on the collective bargaining of wages in public and mixed enterprises; (ii) the Government indicates that restrictions on the scope of collective agreements are established on an exceptional basis, and principally in the context of the provision of public services; and (iii) in this context, the Government adds that the constitutional protection of the general interest may require the financial clauses of collective agreements not to prejudice the wage balance on the market or price levels in the national economy.

In this regard, emphasizing that Article 4 of the Convention requires the promotion of free and voluntary collective bargaining, the Committee recalls that: (i) the public authorities may establish machinery for discussion and the exchange of views to encourage the parties to collective bargaining to take voluntarily into account considerations relating to the Government’s economic and social policy and the protection of the public interest; and (ii) restrictions on collective bargaining in relation to economic matters should only be possible in exceptional circumstances, that is in the case of serious and insurmountable difficulties in preserving jobs and the continuity of enterprises and institutions. The Committee, therefore once again requests the Government to take the necessary measures to amend the legislation as indicated above and to provide information in its next report on any measures adopted in this regard.

Relationship between collective bargaining and the legislation. The Committee notes that various Bills, currently under examination by the Congress, envisage the amendment of section 618 of the CLT, to provide that terms and conditions of work determined by means of a collective agreement or accord shall prevail over those set out in law, on condition that they are not contrary to the Federal Constitution or occupational safety and health standards. The Committee notes that these Bills would entail a significant modification of the relationship between the legislation and collective agreements and accords by permitting in a general manner that the protection set out in the law could be replaced in pejus through collective bargaining. The Committee further observes that the possibility to set aside through collective bargaining legislative provisions conferring workers’ rights is being discussed before the highest judicial bodies in the country. In this regard, the Committee recalls that the general objective of Conventions Nos 98, 151 and 154 is to promote collective bargaining with a view to agreeing on terms and conditions of employment that are more favourable than those already established by law (see the 2013 General Survey, Collective bargaining in the public service: A way forward, paragraph 298). The Committee emphasizes that the definition of collective bargaining as a process intended to improve the protection of workers provided for by law is recognized in the preparatory work for Convention No. 154, an instrument which has the objective, as set out in its preambular paragraphs, of contributing to the objectives of Convention No. 98. During the preparatory discussions, it was not considered necessary to set out explicitly in the new Convention the general principle that collective bargaining should not have the effect of establishing conditions that are less favourable than those provided for by law. The tripartite Conference Committee responsible for examining the draft Convention considered that this was clear and that it was not, therefore, necessary to include explicit language to that effect.

From a practical viewpoint, the Committee considers that the introduction of a general possibility of lowering through collective bargaining the protection established for workers in the legislation would have a strong dissuasive effect on the exercise of the right to collective bargaining and could contribute to undermining its legitimacy in the long term. In this respect, the Committee emphasizes that, although isolated legislative provisions concerning specific aspects of working conditions could, in limited circumstances and for specific reasons, provide that they may be set aside through collective bargaining, a provision establishing that provisions of the labour legislation in general may be replaced through collective bargaining would be contrary to the objective of promoting free and voluntary collective bargaining, as set out in the Convention. The Committee trusts that the scope and the content of Article 4 of the Convention will be fully taken into consideration both during the examination of the Bills referred to above, as well as in the pending judicial proceedings. The Committee requests the Government to provide information on any development in this respect.