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

Individual Case (CAS) - Discussion: 2019, Publication: 108th ILC session (2019)



Written information provided by the Government

Once again, it was with perplexity that Brazil heard the news that it has been mentioned in the preliminary list of countries that may be examined during the International Labour Conference in 2019.

To this end, as a general report, Brazil indicates below several issues that substantiate its dissatisfaction with the attitude of this International Labour Organization (ILO), especially because it is one of the countries that has ratified the most international labour Conventions and seeks, enduringly, in line with domestic legislation, to give the highest degree of effectiveness to such instruments.

The Committee of Experts on the Application of Conventions and Recommendations

First, it should be emphasized that the ILO Committee of Experts, whose primary mission is to monitor the effective application of international labour agreements – within the scope of the various members of the Organization – should heed the fact that the Conventions may receive different interpretations when they are applied individually by countries, especially due to the need for harmony between the international text and domestic legislation.

Having said that, Brazil yet again reaffirms that it has not violated any of the provisions of ILO Convention No. 98 when drafting Act No. 13467 of 13 July 2017.

Prevalence of negotiation over legislation (articles 611-A and 611-B of the CLT)

As previously mentioned in the documents sent by Brazil to this Organization, the provisions of articles 611-A and 611-B of the Consolidation of Labour Laws (CLT), brought to the legal system through Act No. 13467/2017, are in full harmony with the content of ILO Convention No. 98, especially with respect to Article 4 of the aforementioned Convention.

In this line of thought, built by the provisions mentioned above, Brazil aimed to increase the legal security of the collective instruments negotiated between workers and employers. To this end, it presented a list of labour rights that may be subject to collective bargaining. However, with the clear objective of safeguarding interests superior to collective bargaining, a specific provision was created whose list of topics cannot be included within the scope of collective clauses and also presents a series of rights enshrined in the 1988 Constitution of the Federative Republic of Brazil itself. It is, therefore, a modern legislation in the sense of demonstrating to social partners the scope of collective bargaining in a transparent manner.

The purpose of clarifying the matter that can be subject to collective bargaining perfectly respects all the content of ILO Convention No. 98 and, even more significantly, confers a high degree of concreteness to the Constitution of the Federative Republic of Brazil of 1988, which, since its enactment, promoted collective bargaining and established the recognition of collective labour agreements and accords as a fundamental right of workers.

It is also important to emphasize that since the advent of Act No. 13467/2017, the Judiciary, notably the Supreme Court of Brazil, has focused on several issues of that statute. However, no constitutional action was brought to the attention of the Supreme Court of Brazil on the issue of the prevalence of negotiation over legislation (articles 611-A and 611-B). In this regard, having passed through various constitutionality and conventionality judgments in the various committees of the Brazilian Parliament, and not having been dismissed under the Supreme Federal Court of Brazil, it is evident that such provisions are in line with the legal system and do not violate domestic and international laws. It is, above all, a democratic and sovereign action, whose main purpose is to enable collective, free and voluntary negotiations with legal certainty.

In terms of numbers of collective instruments, one should consider that the Mediator System, the system responsible for registering collective instruments negotiated by trade unions, demonstrates that collective negotiations continue to be conducted and registered in numbers approximating to those anterior to the advent of Act No. 13467/2017. Specifically about the numbers, there was a total of 13,435 collective instruments signed in 2017; 11,234 in 2018; and 12,095 in 2019, taking into account the first quarter of each year. Therefore, if Brazil showed a drop of 16.38 per cent in the 2017–18 comparison, it showed an evolution of 7.11 per cent in relation to the year 2018–19.

The above finding, in turn, suggests that, although the regulatory framework requires a reasonable amount of time for the parties to get to know it and apply it in practice, negotiations did not experience an alarming decrease, as affirmed by those who are unaware of the actual data. In practice, therefore, articles 611-A and 611-B of Act No. 13467/2017 did not represent an obstacle to the continuation of collective bargaining in Brazil.

The exception to the single paragraph of article 444 of the CLT (individual negotiation)

At no time is Brazil unaware that the rule of negotiation has a collective character. However, after observing that a small portion of workers have greater bargaining power in relation to the employer, Act No. 13467/2017 decided to entrust greater force to individual negotiations, only in these cases. In this sense, the worker with a higher educational level and who receives a monthly salary equal to or higher than twice the maximum limit of the social security benefits of the Brazilian social security system, can stipulate contractual conditions that, in his view, are more advantageous for him.

On the other hand, as mentioned above, the possibility presented above reaches approximately 1.45 per cent of the workers governed by the CLT and 0.25 per cent of the Brazilian population. Thus, despite the voices that argue that individual negotiation has replaced collective bargaining, this statement is not true. What was sought with the device, one can recall, was to grant a select group of workers, holders of a greater bargaining power, with the possibility of entering into negotiations that will meet their individual interests in a more fruitful way.

Regulation of autonomous and self-employed workers (article 442-B of the Labour Code)

As is the case for all provisions in Act No. 13467/2017, the core function of article 442-B is to provide both self-employed and companies with legal certainty. In this field, the Brazilian Parliament, in perceiving the need to legislate on situations that have long existed in practice, understood that it would be advisable to regulate the situation concerning the self-employed, while excluding an employment relationship between the contracting parties.

It is obvious that Brazil’s legislation has not distanced itself from the so-called principle of the primacy of reality. In this regard, it is not excluded that the competent authorities in Brazil can unveil genuine employment relationships beneath disguised service agreements. This is the reason why Brazil has enacted an ordinance by which full assurance is given that an employment relationship will be recognized where legal subordination between a professional and an employer exists. Once again, it is proved that the text of Act No. 13467/2017 has refined the view about the law while preserving the necessary legal certainty for all social actors.

Prevalence of collective accords over collective agreements (article 620 of the Labour Code)

Another question raised by the report of the Committee of Experts refers to the fact that Act No. 13467/2017 has introduced a rule in order to reinforce collective bargaining by means of taking due account of specific circumstances surrounding the workers of a given category at the company-level. Such provision’s intent has been, therefore, to allow for the prevalence of the specific conditions (collective accords) over the general conditions (collective agreements).

In this light, it cannot be overlooked that the collective accord is much closer to the day-to-day life of the workers at the company level. Thus, the factual reality can be better translated by means of the collective accord, giving more density to the negotiated clauses.

All in all, it could be said that, instead of violating Article 4 of Convention No. 98, new article 620 of the Labour Code is in full compliance with that international standard. Convention No. 98, beyond any doubt, affirms the need that measures for the promotion of collective bargaining be appropriate to the national conditions. Hence, the Brazilian Parliament, while abiding by Convention No. 98, acknowledged the specificity of the collective accords over the collective agreements.

Conclusions

Out of respect for the ILO, Brazil has consistently provided detailed information on the substantive minutiae of a wide range of relevant provisions of Act No. 13467/2017.

In addition, as indicated on previous occasions, it should be underlined that internal issues of Brazil, with no bearing whatsoever on labour matters, cannot serve as a basis for requesting the country to present explanations on a legislation that was extensively discussed in Parliament and that has been gradually implemented in the context of legal relations between workers and employers.

In this sense, the inclusion of Brazil in the preliminary list, for the second consecutive year, is unwarranted. Nonetheless, Brazil has demonstrated that Act No. 13467/2017 did not infringe any international standards, in particular Convention No. 98.

Discussion by the Committee

Government representative – I stand before you today with a deep feeling of unfairness and injustice. The ILO has treated Brazil in an unreasonable, unfounded and unfair way spanning now for three years. Over this period, the Committee of Experts has fallen short of the most elementary standards of impartiality and objectivity. In 2017, the Committee of Experts issued pre-emptive, speculative observations on what was then still a bill under discussion in the Brazilian Congress. In 2018, having met in Geneva only a few days after the entry into force of the new Labour Code of Brazil, the Committee of Experts broke the cycle of presentation of reports in an unjustified manner, and considered the new legislation in breach of Article 4 of the Convention.

Despite Brazil’s further information provided last year, the Committee of Experts hastened, once again, in 2019, by suggesting courses of legislative action for the country, based on mere assumptions and unwarranted prejudgements. Unfortunately, the shortcomings in the Committee of Experts have been compounded by the lack of transparency, objectivity and genuine tripartism. By being shortlisted twice in a row, for no technical or sound reasons on both occasions, Brazil illustrates how easily (and dangerously) the supervisory system of the ILO can be misused to the detriment of the Organization’s legitimacy and effectiveness. A system that allows for a hasty analysis to become – by the political whim of a few – a case in the Committee is way below what is expected from an international organization like the ILO. This case shows that the supervisory system has to undergo a serious, profound and comprehensive reform, for the good of all constituents, as Brazil and GRULAC have been flagging in as many opportunities as necessary.

In brief, the Committee of Experts understands that the prevalence provision of collective bargaining, as provided for in article 611-A of Brazil’s Labour Code, is too generic and runs counter to the objective of promoting free and voluntary collective bargaining set forth in Article 4 of Convention No. 98, as well as Articles 7 and 8 of the Collective Bargaining Convention, 1981 (No. 154). The analysis by the Committee of Experts in this regard is flawed on at least three accounts:

(i) the Committee completely disregards the conditions that led to the said labour reform in 2017;

(ii) the Committee’s legal reasoning lacks any basis on the text of those Conventions; and

(iii) the evidentiary support used by the Committee is far from being thorough and unbiased.

Addressing the first flaw, I wish to point out that the Committee neglected to mention that, in Brazil, it was common in the past that the judiciary nullify labour clauses of collective agreements, or agreements in their entirety, without any objective legal reasoning. That situation created legal uncertainty and deeply disrupted the incentives for collective bargaining, leading to frequent complaints by trade unions and companies alike. Out of the 17,000 unions in Brazil, only one third had negotiated any kind of collective agreement, per year, before the labour reform. This is a rather dysfunctional system, choked by bureaucracy, and in desperate need for a new breath of life. Such issues became particularly pressing in a context of deep economic recession. An economy that condemns more than 40 per cent of its workers into informality, with an additional 12 million people out of jobs, resulting in two-thirds of its population being either in the shadow market or unemployed, without any social security protection. An economy like this cannot be seen as healthy in any way. By strengthening collective agreements, we open the possibility for each category to negotiate, collectively, the best terms to reconcile employment quality and increase of productivity, without affecting workers’ rights. Who am I, behind a ministerial desk, to decide what is best for each worker? Who are we, here in Geneva, to decide, what is the best package of more favourable rights and benefits for one single category in complex negotiations? We must allow workers and employers to take responsibility and decide what is best for their own future. Benefiting from other international experiences, however, the labour reform in Brazil did not invest in temporary contracts, which remain used by only 1 per cent of the labour force. Rather, it resorted to increasing legal certainty to reduce turnover rates, improve productivity and to promote better working conditions. In a comparative international perspective, the labour reform in Brazil approximates it to institutions in force in developed countries, where collective bargaining can negotiate over legal provisions for different subject matters. Moreover, our Federal Constitution enshrines 30-plus rights that cannot be subject to reduction or suppression through collective instruments or individual negotiation and include, among others, the value of the minimum wage; the 13th salary; maternity leave; vacation; minimum remuneration for extraordinary service. None of these items have been touched by the labour reform. Therefore, there can be no doubt that the sum of the relevant provisions in the Constitution and the Labour Code provides for a system that ensures a large range of rights, while allowing more open collective negotiations on the periphery.

On the second flaw of the Committee of Experts, despite Brazil’s arguments, that Committee simply reiterated its assumptions that Conventions Nos 98, 151 and 154 all contain a “general objective of promoting collective bargaining as a means of reaching agreement on more favourable terms and conditions of work than those envisaged in the legislation”. This assumption is simplistic and could be interpreted as paternalistic, especially in the Brazilian context. Also, such an interpretation finds no basis on the texts of those Conventions. The Committee of Experts does not address the criticism of the Brazilian Government on the inexistence of a textual ground for the Committee’s position and the inappropriate character of the recourse to “travaux préparatoires”.

As to the third major flaw in the analysis of the Committee of Experts, the report is prolific in references to non-specific, theoretical threats to the national labour system. The sole basis sustaining such references comes from unfounded inputs. As an example, the report uses expressions such as “labour productivity may have dangerous consequences”, or “it is possible to derogate”, or “legislation creates the conditions for downward competition”, “article 611 is likely to result” and “could act as incentive to corruption”.

The report also bases its assumptions on “first statistics” and on “various studies” which were never brought to the general public and scrutinized. These so-called “studies” are, in fact, newspaper articles or papers by a union-run and union-funded organization. Even the latter dedicated only a handful of paragraphs to the collective bargaining issue. All imputations made against Brazil stem from hypothetical analysis and suppositions readily received by the Committee of Experts, a body that should base its procedures in findings, not on speculations; a Committee that should always strive to work as an evidence-based mechanism and not to pass judgements on nations based on fragile information. Countries all over the world are basing the design of their public policies on readily available data and on analysis of regulatory impact. Solid technical grounds and economic studies should be the very minimum basis for any dialogue, positions or recommendations on countries’ policies and legislation.

It is enlightening to analyse a 160-page study on the labour reform and collective bargaining in Brazil, recently published by FIPE, a leading economic research institution linked to the University of São Paulo.

All in all, the Committee of Experts assesses that the data provided by the criticizers would indicate a decline in the number of collective agreements after the entry into force of the labour reform. This is not a surprise as parties adapted to a new, more responsible system. What is a surprise is the difference between the actual figures and what was claimed by the Committee of Experts. While the workers claim a 45 per cent reduction of the overall collective agreements in 2018, the actual figures are 13.1 per cent. In the first four months of 2019, when a phase of adjustment at a high level of the negotiated agreements began, the number of agreements rose by 7 per cent, bringing numbers roughly back to what they were prior to the labour reform, as demonstrated by FIPE’s study once again.

Therefore, negotiations did not experience an alarming decrease, as alleged by criticizers. More importantly, data shows the increase of negotiated clauses that establish more favourable conditions for associated workers. From a sample of 20 benefits, the FIPE’s study shows that 17 of them are more present in agreements now than they were before the labour reform. As intended, collective agreements are indeed covering a broader set of interests.

The Brazilian labour reform has also been evaluated and scrutinized by other international organizations. The World Bank, for example, issued a study called “Jobs and Growth: The Agenda for Productivity”, praising the reform’s positive incentives to correct labour market inefficiencies, while providing more opportunities for labourers, especially the poor and vulnerable. A second study by the World Bank called “Competences and Jobs: An agenda for the youth” indicates that the reform contributed to increase legal certainty, creates incentives to more responsive and responsible unions, while easing dispute resolution in the labour market.

The OECD and the IMF also praised the labour reform in Brazil and in their view the reform contributes to job creation and the diminishing of outrageous informality rates. These are all independent international organizations of renowned technical expertise. Certainly, a much more trustworthy source of information than one newspaper article.

In relation to the duty to conduct consultations, the Committee of Experts fails to indicate the relevance of the matter for the consideration of application of the Convention If at all, the Committee should address this issue in relation to the implementation of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), which is not under consideration.

The allegations on this matter are even more absurd. Since 2003, collective bargaining has been extensively discussed with the social partners in Brazil. In 2016, before the reform reached congress, the Government indeed undertook “prior consultations” with all the central unions before finalizing and sending to Parliament the bill that already contained the collective bargaining provisions. I must register: the bill was signed and sent to congress in a presidential event in the main executive building with the presence of all employers’ confederations and all but one of the central unions.

The two chambers of the Brazilian Congress held a total of 30 public hearings, with more than 120 specialists. Economists, lawyers, employers and the vast majority of the central unions participated in those discussions. Seven official regional seminars were also organized and dozens of private seminars, round tables and formal discussions were held throughout Brazil’s vibrant civil society, a testimony to freedom of speech and social dialogue. Solely in the lower house, around 100 representatives were union- or worker-related and, at last, the reform was approved in both parliament houses by a large margin of roughly two-thirds of the representatives.

Prior consultations, together with a strong parliamentary activity of all groups, attests to the legitimacy of the process and full compliance with the Convention. More than 2,000 amendments were presented to the bill within Congress. Various significant aspects of the bill have indeed been altered in the interest of society as a whole, resulting in Act No. 13467, as is normal and should be expected in any democratic country.

By the way, this is the same Congress that evaluated and ratified 97 ILO Conventions. Questioning the capacity and legitimacy of the Brazilian Congress to discuss a labour reform is questioning its legitimacy in ratifying ILO Conventions and we understand that this is not the Organization’s intent.

Of utmost importance is to note that around 30 judicial proceedings were presented to the Federal Supreme Court against points of the reform. None – I repeat, none – deal with collective bargaining. We call upon the necessary coherence and invite the criticizers to present their case to the Supreme Court, inquiring about the consistency of the labour reform with the Brazilian Constitution and with the Convention.

To conclude, considering that Brazil has ratified 97 ILO Conventions and that its performance in the context of the ILO’s supervisory mechanisms is exemplar; recognizing the labour code of Brazil is one of the most complete in the world and that labour rights are enshrined in the Brazilian Constitution; considering that accusations against Brazil were based on fragile information and that the Committee of Experts should be an evidence-based mechanism; taking into account that Brazil has presented technical studies from renowned research institutions and international organizations; and taking stock that labour modernization in Brazil is still going on through the scrutiny of the Supreme Court, Brazil requests this commission to correct this historical mistake and refrain from issuing further recommendations on the Brazilian labour reform, while registering Brazil’s full compliance with the Convention and the International Labour Organization.

Employer members – I would like to begin by thanking, on behalf of the Employers’ group, the distinguished Government representative for his detailed submissions in respect of the aspects of this case. As the Committee is aware, the present case concerns a fundamental Convention, Convention No. 98, and is related to the wider issue of the 2017 labour market reforms in Brazil. The Committee of Experts, has observed that the adoption of the labour market reforms was not compatible with Article 4 of the Convention. However, in the Employers’ view, the connection between the reforms and Article 4 of the Convention is weak; they are based on rather unfounded assumptions and flawed interpretations. In our view, there is no substantive issue with respect to Brazil’s compliance with the Convention.

In terms of process, the Employers note that last year there was a discussion about the breaking of the reporting cycle that occurred by the Committee of Experts, and our deep concerns that the reforms that were adopted in the Consolidation of Labour Laws (CLT), were adopted only on 13 November 2017, and so when the Committee of Experts assessed this case at that time, there was not sufficient information and experience to be able to properly do so.

We would also note that the 2018 conclusions of the Committee, requested that the Government provide information on labour market reform which was done. We also note that the 2018 Committee of Experts’ observations applicable to this session of the Committee, maintained its earlier assessment, which provides the Employers’ group concern, in that the Committee of Experts may not have properly considered the Employers’ position and the CAS conclusions. We will continue to work with the Committee of Experts to highlight these concerns in this regards, and at this moment I will ask another Employer member to provide the substantive aspects of the Employers’ submissions on this case.

Another representative of the Employer members – I will focus on commenting, one by one, on the points raised by the Committee of Experts in its 2018 observation.

First, with regard to the adoption of Act No. 13467 in Brazil, the Committee of Experts attempts to justify the early examination of the Act on the basis of the claims and information provided by Brazilian and international unions, without taking into account the divergent views of the Government of Brazil, Brazilian employers and the whole of the Employers’ group as expressed during the discussion of the case last year. This is a matter of concern to us.

Second, with reference to the relationship between collective bargaining and the law and sections 611-A and 611-B, we emphasize that we are not in agreement with the analysis of the Committee of Experts that these provisions are not in conformity with the respective Articles of Convention No. 98, nor with the request by the Committee of Experts for the Government to revise these provisions.

In the view of the Employers’ group, Article 4 of the Convention does not prohibit the law from authorizing changes being made to legislative provisions through collective agreements and establishing higher or lower levels of protection than those set out in specific provisions of the law. The levels of protection established by the law in this case are, de facto, not absolute, but must be considered in the light of the possibility that collective agreements may make changes for specific periods. Article 4 of the Convention is silent on the relationship between the law and collective agreements, and particularly on whether a law may authorize exceptions to its provisions in collective agreements. Nor is there any provision in Article 4 of the Convention under which the provisions of collective agreements must always be more favourable for workers than the provisions of the law. The sole objective that can therefore be attributed to Article 4 is to allow the social partners to negotiate, within the framework established by the law (which may include the authorization to establish exceptions to its provisions), more appropriate conditions (whether they are more favourable, more favourable in part or less favourable) for their members at the sectoral, regional, occupational or enterprise level.

Nevertheless, the question of whether the law may authorize exceptions to its own provisions through collective agreements, and the extent to which it may do so, is not regulated by Article 4 of the Convention. Nor is it important in the context of Article 4 of the Convention whether the authorization allows general or more restricted changes, as appears to be the case with sections 611-A and 611-B. Article 4 therefore simply does not address this issue, and it is as simple as that.

We are not in agreement with the Committee of Experts that the introduction of sections 611-A and 611-B does not adequately “promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations …” within the meaning of Article 4 of the Convention, for the following reasons:

(1) the right to collective bargaining of workers’ organizations is not affected by the changes to the law;

(2) Brazilian workers’ organizations are not impeded in any way from negotiating better conditions of work for their members;

(3) if employers make proposals that workers’ organizations do not consider appropriate, they are not obliged to accept them;

(4) the scope for voluntary bargaining has increased, as it is not only possible to agree to stricter standards, but also, for example, stricter standards in exchange for less strict standards in other areas (that are considered to be less important); and

(5) the argument of the Committee of Experts that there has been a significant decrease in the number of collective agreements does not appear to be an appropriate indicator to show that collective bargaining is not being promoted sufficiently: as the labour market reforms involved various legislative changes, the decrease in the conclusion of new collective agreements may have reasons that have no relation with the changes made to sections 611-A and 611-B and, moreover, as the coverage of collective agreements varies significantly from one country to another, there is no specific level of coverage that indicates compliance with Article 4 of the Convention.

It is therefore not a quantitative matter, but a qualitative question. Accordingly, the only thing that can be said here is that the Government, in consultation and cooperation with the social partners, can continue to observe the impact of the reforms which have only been implemented for a very short period and decide on the adjustments that it considers appropriate.

However, the Government is not required to make any changes in light of its obligations under the Convention, despite the requests made by the Committee of Experts. It should be recalled that, in its conclusions to the case in 2018, the Conference Committee only requested the Government to provide more relevant information and deliberately did not request the Government to amend the law.

We note with concern that the Committee of Experts (and in some ways the Office itself in its supporting role) has ignored the lack of tripartite consensus on this issue, as reflected in the conclusions of the Conference Committee in 2018, and is continuing to request the Government to amend the law.

I would now like to refer to the relationship between collective bargaining and individual contracts of employment. Firstly, with regard to the possibility envisaged in section 444 of the Consolidation of Labour Laws (CLT) for workers with higher levels of education and incomes to decide to negotiate freely their specific terms and conditions of employment (with the exception of the fundamental rights enumerated in section 611-B), we consider that this is a matter that is unrelated to Article 4 of the Convention. Article 4 of the Convention deals with the promotion of collective bargaining, not the relationship between the law and individual contracts of employment. We therefore consider that the views expressed by the Committee of Experts are completely outside the scope of the Convention under examination.

Moreover, section 444 refers to a group of workers which, in view of their higher education and incomes, their social condition and independence, appears in any case to be in a better position to negotiate individually and may be more interested in having the flexibility to negotiate their individual conditions of work. We therefore consider that the views of the Committee of Experts have no basis in Article 4 of the Convention.

In contrast with the affirmation by the Committee of Experts, Article 4 does not require employment contracts to set out terms and conditions that are always more favourable than those of collective agreements. Although it is clear the contracts of employment cannot establish exceptions to the applicable collective agreements based on their own legal status, they can do so when this is specifically authorized by the law. And Article 4 of the Convention does not prohibit the law from establishing such authorizations in specific cases.

The Committee of Experts also appears to consider that section 444 exempts the group of workers defined therein from the scope of application of the Convention. But this is not the case. These workers benefit from the full protection of Article 4 of the Convention, unless and to the extent to which they decide freely not to require such protection.

With regard to the scope of application of the Convention and the new definition of autonomous workers in new section 442-B, firstly we must make it clear that Article 4 of the Convention applies to “workers” and their organizations. The Government is fully justified in defining the term “worker” and in distinguishing between “workers” and “independent contractors”. It appears that in this context the Government is using the criterion of “subordinate position”, which does not appear to raise problems with objectives of Article 4 of the Convention. In this respect, we do not therefore agree with the analysis of the Committee of Experts and the corresponding request for the adaptation of collective bargaining procedures contained in the report, as it appears to be based solely on the general information provided by the unions, without any exhaustive examination of the issues involved by the Committee of Experts.

To conclude this analysis of the observations, I will refer to the relationship between the different levels of collective bargaining. We consider that section 620, which gives priority to collective labour accords, at the level or one or more enterprises, over collective agreements concluded at a broader level, whether they are sectoral or occupational, does not give rise to problems of conformity with Article 4 of the Convention or with any other ILO instrument, because:

- Article 4 of the Convention does not address the legal hierarchy of the various levels of collective bargaining;

- the Collective Agreements Recommendation, 1959 (No. 91), only refers to the relationship between collective agreements and individual contracts of employment.

I want to make it clear that more favourable clauses negotiated at the sectoral level will only be replaced by less favourable agreements in collective labour agreements in which:

- the enterprise level unions agree to conclude an enterprise agreement; and when

- the unions accept a less favourable clause.

None of this is automatic or evident. In any case, the unions are not required to do so.

Insofar as section 620 also allows less favourable clauses in labour accords and, accordingly, the negotiation of more favourable conditions in certain respects with less favourable conditions for others, it extends the scope of collective bargaining at this level. As section 620 makes collective bargaining more attractive and promotes it, in the view of the Employers’ group we consider that it is fully in compliance with the objectives of Article 4 of the Convention.

In light of the above, the Employers’ group sees no need to request further information from the Government on this latter aspect.

Finally, and with regard to the matters referred to in the 2016 observation, we consider that they should not have been raised in the form of an observation, but should have been included in a direct request for information from the Government concerned.

Worker members – This is the second time we are discussing the application of the Convention in Brazil. We discussed this case last year in the Committee and the year before Brazil was longlisted. The case of Brazil is indeed turning into a case of persistent failure to comply with ILO standards.

This is deeply saddening for the Workers’ group. After years of social progress, with millions of people lifted out of poverty, not only through solid social security measures but also the development of strong collective bargaining institutions, we are witnessing an almost unprecedented destruction of collective bargaining and other pillars of labour market institutions and democracy.

As we feared, Act No. 13467 amending the Consolidation of Labour Laws (CLT) has had a disastrous impact on collective bargaining rights and industrial relations as a whole.

Last year, our Committee made two main recommendations: first, that the Government provides information and analysis on the application of the principles of free and voluntary collective bargaining in the new labour law reform; and second, that the Government provide information on the tripartite consultations with the social partners regarding the labour law reform.

The Workers’ group recalls that a new section 611-A of the CLT completely inverts the hierarchy between the law and collective bargaining. It establishes a general principle that collective agreements and accords prevail over the legislation, except for 30 constitutional rights referred to in section 611-B of the CLT which cannot be derogated. Similarly, under section 620 of the CLT as amended by Act No. 13467, more favourable clauses negotiated at the level of sectoral activity of occupation are replaced by less protective clauses negotiated at the enterprise level.

Last year, the Workers’ group strongly deplored the severe shortcomings and flaws of these provisions. We warned against the irreversible undermining of the legitimacy of collective bargaining in the long run. These provisions are a frontal attack on the principle of free and voluntary collective bargaining established in Article 4 of the Convention. We recall that the general objective of promoting collective bargaining is to reach agreement on more favourable terms and conditions of work than those envisaged in the legislation or in clauses negotiated at a higher level. This is stipulated in Conventions Nos 98, 151 and 154, which, by the way, have all been ratified by Brazil.

The amendments introduced by Act No. 13467 have a strong dissuasive effect to collectively bargaining and create the conditions for downward competition between employers in relation to terms and conditions of employment. The Government of Brazil argued last year that the amendments were called by the economic recession and that time would prove that the changes would have a positive effect on employment and industrial relations. A year on, we can only take note of the catastrophic impact of Act No. 13467 on collective bargaining and unemployment in Brazil. According to official data from the Brazilian Institute of Geography and Statistics, as of April 2019, unemployment has reached 12.5 per cent of Brazilians, that is 13.2 million unemployed workers, which represents a 4.4 increase compared to December 2018. Collective bargaining coverage has dropped by 39 per cent. Basically, this Act has increased unemployment. The consequences of this Act by Brazilian workers have been devastating for working people.

Furthermore, we reject the Government’s arguments addressed to the Committee of Experts that the amendments provide greater legal security. Evidence shows that the new CLT provisions restrain collectively bargaining as an instrument for improving conditions of work. They also leave trade unions subject to threats and pressure to accept derogation and act as an incentive for corruption in collective labour relations. This is because the new CLT provisions allow all trade unions, irrespective of their level of representativity, to negotiate below the level of legal protection. We denounce, as the Committee of Experts does, the reversal of the hierarchy of norms operated by sections 611-A and 620 of the CLT. We also denounce the very extensive possibilities for derogation from higher, more protective norms opened up by these sections of the CLT.

We recall the two principles that underpin the Convention. And these principles are reaffirmed in Recommendation No. 91: the principle of free and voluntary collective bargaining; and the binding nature of collective agreements. Sections 611-A and 620 of the amended CLT are contrary to these principles.

We are extremely concerned by the Government’s disregard for the disastrous effects that Act No. 13467 has already produced on workers in Brazil. These negative effects will even further worsen if no immediate action is taken to repeal those regressive amendments. Therefore, we strongly urge the Government of Brazil to carry out an immediate review of the CLT, in consultation with the social partners, with a view to repealing sections 611-A, 611-B and 620 of the CLT.

Furthermore, we must once again express our deep concern about the new section 444 of the CLT. This section provides for the possibility to derogate from the content of collective labour agreements in individual contracts of employment for workers with a higher education diploma and wages that are at least two times higher than the ceiling for benefits under the general social security scheme.

In its report to the Committee of Experts, the Government seeks to minimize the impact of the provision by arguing that it would only apply to a very small proportion of workers, around 2 per cent. Such reasoning, even if proven accurate, does not exonerate the Government from applying the Convention, including the objective of promotion of collective bargaining set out in Article 4. Certainly, it does not allow the Government to create new categories of workers that can be excluded from the benefit of the Convention.

We urge the Government of Brazil to take, without delay and in consultation with the social partners, the necessary measures to restore the principles of the binding effect of collective agreements and their primacy over individual contracts of employment where the latter are less favourable.

We also reiterate our concern regarding the extension of the definition of autonomous and self-employed workers under new section 442-B of the CLT. A significant number of workers are now excluded from the rights set out in the Convention.

We recall that over 23.9 million workers are self-employed in Brazil, a 4.1 per cent increase since April 2018. In addition, 11.2 million workers are in the informal economy, with no legal protection against abuses, that is an increase of 3.4 per cent since 2018.

We join the Committee of Experts in affirming that the right to collective bargaining also covers organizations representing self-employed workers. All necessary measures must be adopted to ensure that autonomous and self-employed workers are authorized to participate in free and voluntary collective bargaining.

Finally, we call on the Government to address without delay the shortcomings and legislative gaps regarding the following points:

- adequate protection against anti-union discrimination;

- compulsory arbitration in the context of the requirement to promote free and voluntary collective bargaining;

- the right to collective bargaining in the public sector; and

- the subjection of collective agreements to financial and economic policy.

We also remind the Committee that Act No. 13467 was adopted hastily and without prior genuine and meaningful consultation with workers’ organizations. In that regard, we note the concern expressed by the Committee of Experts with regard to the absence of a structured process of tripartite social dialogue intended to develop agreement on the content of the reform. Social dialogue cannot be substituted by some public hearings organized within the Parliament in the presence of trade unions and employers’ organizations. The Government must engage the social partners in genuine negotiations within the framework of the national tripartite body. Such negotiations should urgently focus on reviewing the amendments introduced by Act No. 13467 and repeal all the provisions of the CLT that are not in line with the principles and provisions of the Convention.

We have brought these issues to the attention of the Committee last year and the Committee of Experts has meanwhile made further comments.

Moreover, since our last discussion of this case, there has been a change in the Administration. However, not so much in the policy and attitude. It has been publicly proclaimed that Brazilian workers will from now on have to choose between rights or a job. The Government claims that both will not be possible and therefore makes it clear that it has no intention whatsoever to give effect to the rights enshrined in the Convention. This is completely unacceptable, and we as workers will not remain silent. If the Government refuses to engage with us constructively, it will force us to make our voices heard on the streets and in the workplaces.

Yesterday, 45 million Brazilian workers in over 300 cities did exactly that during the general strike that has been led by trade unions, social movements and the general population – all outraged with the stripping of the protections they enjoyed over the past 20 years. We urge the Government to take this signal very seriously.

Clearly, the Government is unhappy about having to appear before the Committee and to listen to the voices from all over the world. But its real challenges will have to be to really listen to the voices of its own workers and population.

Employer member, Brazil – At the outset, we recall that last year the same case was examined by this Committee on the same basis, namely a supposed violation of the Convention. On that occasion, it was recognized that there was no element that was not in accordance with the Convention and the only request was for more information, which has been provided. There has not therefore been any new fact justifying a further discussion of the case, which therefore leads us to analyse the context and motives for the inclusion of Brazil on the shortlist and to ask ourselves why we are here?

We will therefore analyse the allegations which have led to Brazil once again having to provide this Committee with information. Let us begin with the interpretation by the Committee of Experts that bargaining should only occur to offer benefits to workers over and above those provided for by law.

During the examination of the case of Brazil in 2018, we expressed concern at the adoption of broad interpretations of Conventions by this house. The spirit of the Convention is that free and voluntary bargaining affirms the will of the parties, and the Constitution of Brazil endorses the Convention by recognizing collective bargaining as a social and labour right, thereby reinforcing its commitment before the constituents to the principles of the instrument.

What raises questions for us is whether this broad interpretation prevails in guiding the application of the Convention in my country, what precedent will be set for the over 160 countries that are signatories to the Convention, how will future analyses of collective bargaining be applied throughout the world, are we to change the rules of the game, is collective bargaining about to become a tool for unilateral concessions, and does it no longer retain its essence, which is the common adaptation of terms and conditions of employment and reciprocal concessions?

The repeated intention to examine Brazilian legislation through the lens of these arguments once again raises doubts. We are no longer hearing what criteria have been adopted, or are political criteria to the detriment of the analysis required from the viewpoint of technical criteria? If this is the case, it should be recalled that this house is essentially a technical organization and that it must never be diverted from this vocation.

In any case, I must speak to the labour reform in Brazil, which is under discussion today, and which was above all a country reform. It was through this reform that Brazil left behind antiquated legislation from the last century and aligned itself with the main economies in the world. It was also through this reform that it strengthened the voices of workers and employers so that together they could establish their terms and conditions of employment, with minimum interference from the State.

The unfounded allegation is made that Brazil, by establishing the prevalence of collective bargaining to regulate employment relationships, has adopted legislation that is contrary to the Convention. Article 4 of the Convention, it has to be said, is crystal clear in providing that countries shall take “[m]easures appropriate to national conditions … to encourage and promote the full development and utilisation of machinery for voluntary negotiation” for “the regulation of terms and conditions of employment”.

Moreover, Convention No. 154 provides in Article 2 that collective bargaining is for “determining working conditions and terms of employment” and/or “regulating relations between employers and workers”. There is also no room for doubt in Article 5 that measures adapted to national conditions shall be taken. This is so that collective bargaining can facilitate all issues relating to the determination of conditions of work and employment with a view to regulating employment relations. In this sense, the Committee on Freedom of Association has emphasized on several occasions, which we highlight here, that it is necessary to develop and promote the full use of negotiation with minimum interference by the State.

In Brazil, the National Congress, following discussions with the social partners, set out limits and possibilities for collective bargaining. This was done to allow Brazil to overcome a situation of insecurity for social dialogue, which took the form of the repeated annulation, sometimes arbitrarily, of collective instruments concluded freely and voluntarily.

This situation was resumed as follows by the Supreme Constitutional Court of Brazil, I quote, “the systematic invalidation of collective labour accords based on a logic of limiting the autonomy of will exclusively applicable to individual labour relations must not be endorsed. Such interference is in violation of the various provisions of the Constitution which promote collective negotiations as an instrument for the resolution of collective disputes, as well as denying employed persons the possibility to participate in the formulation of standards which regulate their lives.”

What happened then is that Brazil established mechanisms adapted to its conditions, at a time when legal insecurity prevailed.

It should be emphasized that Brazil does not grant, in any form, authorization to derogate from labour legislation by means of the prevalence of collective instruments. There are clear temporal and material limits. In temporal terms, the collective instrument has a maximum duration of two years when negotiations do not take place, which means that, in the absence of a collective clause, the terms and conditions set out in the ordinary law and the Constitution prevail fully.

Moreover, there is an extensive list of matters that cannot be subject to negotiation, either to reduce them or to suppress them, such as the level of the minimum wage, maternity and paternity leave, 30 days of annual leave, safety and health standards, among the over 40 guaranteed rights. There is therefore no real basis for claiming that the primacy of collective bargaining over the ordinary legislation, as applied in Brazil, is in violation of the Convention.

With regard to individual bargaining, it should be emphasized that the new rule permits employees with higher education and high levels of remuneration to negotiate their rules of employment. In the current labour market, this affects 0.25 per cent of the Brazilian population, or 1.45 per cent of formal employed persons.

The Brazilian option was to maintain these workers within an employment relationship, but also to increase their bargaining capacity, while guaranteeing all the rights and protections. Or, in other words, this is also in accordance with the Convention.

For all of these reasons, I reaffirm that Brazil places upon workers and employers the great responsibility of engaging in negotiations, within well-defined limits, and limiting the scope of intervention of the public authorities in collective bargaining, in line with the Convention.

In other words, the labour reform in Brazil:

(i) applies the Convention by establishing free and voluntary negotiation between workers and employers;

(ii) protects collective bargaining from external interference;

(iii) consolidates effective machinery to confront economic adversity, in line with international trends in this respect;

(iv) brings Brazil into line with other member States of the ILO; and

(v) principally, through the new formula which permits the negotiation of working conditions that are different from those set out in law, with the exception of all the labour rights established in the Constitution, makes the principle of freedom of negotiation compatible with and balances it with the protection of workers.

Finally, it must be said that this issue was not exhausted before the national legal bodies in Brazil before being brought to the ILO for discussion. None of the unions lodged an appeal with the Constitutional Court of Brazil indicating any violation of the Constitution, the Convention or any other ILO standard to challenge the new model of collective bargaining. Why is no one challenging this? It is true that some cases have been brought to the Supreme Federal Court, but they are challenging other matters than those that are being examined here and now. In reality, it appears to us that the unhappiness is only due to the fact that the contribution of trade unions has become optional, but this subject is not covered in the comments of the Committee of Experts.

We Brazilian employers have great hopes that this house, the home of dialogue and tripartism, in its Centenary year, will only examine specific facts and technical matters, and that this Committee will conclude definitively that the labour reform in Brazil is in line with the Convention.

Worker member, Brazil – We are here today to discuss the process of the formulation and the harmful effects of the labour reform in Brazil, Act No. 13467 of 2017, and the manner in which Brazil has been in reiterated violation of the terms of the Convention. The labour reform in Brazil was adopted with the promise of modernizing labour relations, generating employment, promoting more and better collective bargaining and combating informality. None of these promises have been kept!

In 2017, even before the adoption of the Act, we indicated our concerns to this Organization. The report of the Committee of Experts that year drew attention to the possible impact of the reform and recalled that in accordance with the interpretation of the Convention, together with Convention No. 154, collective bargaining has the objective of improving social protection, never reducing it!

In 2018, the case of Brazil was examined by this Committee and both the Government and the Employers argued that there was no violation of ILO standards, that Act No. 13467 promoted more and better collective bargaining and that the absence of data prejudiced any analysis of the case.

And today, two years after the adoption of the Act, what are the results?

According to the latest survey by the Brazilian Institute of Geography and Statistics (IBGE), an official government body, the unemployment rate in Brazil rose to 12.5 per cent of the economically active population in the first quarter of 2019, compared with 11.8 per cent in the last quarter of 2017, when the Act came into force. That is, since the beginning of the labour reform, there has been an increase of around 1 million unemployed Brazilians. Informal work rose by 4.4 per cent in comparison with the first quarter of 2018 and the number of discouraged workers (those who were no longer seeking employment) reached record levels.

According to the Institute of Economic Research Foundation (FIPE), related to the University of São Paulo, one of the most respected in Brazil, between 2017 and 2018, there was a decline of 45.7 per cent in collective bargaining as a direct result of the labour reform. That is, from one year to the next, almost half of collective bargaining coverage and protection simply disappeared.

The vertiginous fall in the number of collective negotiations is compounded by the possibility of workers individually being compelled to give up rights guaranteed by collective agreements and accords, of an accord revoking clauses that are more beneficial for workers, and the existence of precarious contracts, or contracts that seek to conceal the employment relationship. All of this in practice means the withdrawal of rights.

Act No. 13467 was an unprecedented reversal of the hierarchy of labour rules. Instead of building a growing chain of protection, in which the law is the low basis on which agreed rights are constructed through collective bargaining, this logic is turned on its head to allow even an individual accord to prevail over the law, and over collective accords and agreements, in clear violation of the Convention. For us, this Act is a return to the types of labour relations of 100 years ago and is a disaster in the quest for social justice.

And yet this is not everything. There is currently a veritable persecution of trade unions with the objective of diminishing our capacity to act and to engage in free and voluntary collective bargaining.

In March this year, the Government, without any tripartite consultation or social dialogue, adopted Provisional Measure No. 873 (a Presidential Decree with the force of law) which prohibits employers and workers from negotiating freely the financial dues approved by assemblies. This is a tremendous contradiction with the promise to promote free bargaining between the parties. It is impossible to strengthen collective bargaining in a country where the law prevents workers and employers from establishing freely the terms of trade union financing.

We are denouncing here the complete absence of social and tripartite dialogue in this process, despite all the recommendations and observations made by the Committee of Experts over the past three years.

In the 2019 report, on page 60 of the English version, the Committee of Experts requests “the Government to take the necessary measures, in consultation with the representative social partners, for the revision of sections 611-A and 611-B of the CLT so as to specify more precisely the situations in which clauses derogating from the legislation may be negotiated, as well as the scope of such clauses”. Our question is whether any tripartite meeting was held to address the requests of the Committee of Experts and, if so, when, where and who participated.

In fact, the practice of the Brazilian Government in recent years has been to abolish or void of their content tripartite institutional bodies, such as the National Labour Council, which has never met since. The lack of respect for social dialogue in the country is so serious that the Government has recently abolished, without any consultation, the National Commission for the Eradication of Slave Labour and the National Council for the Rights of Persons with Disabilities, both of which were tripartite in composition. The abolition of these bodies is so absurd that, in our view, it can only be part of the policy of the President of the Republic who, more than once, has said that Brazilian workers will have to choose between having work and having rights, because it is impossible to have both. Moreover, the Government has abolished the Ministry of Labour itself.

Another fallacious argument that we rebut is that there are no specific cases of the violation of the Convention, or the withdrawal of rights following the adoption of the labour reform. We could cite innumerable cases, but we will confine ourselves to two:

– a private university present throughout Brazil, days after the entry into force of the labour reform, dismissed over 1,200 professors with the intention of rehiring them with lower wages and without the protection of a collective agreement;

– at the beginning of this year, aircraft pilots were surprised by an individual contract drawn up by their employers in which they had to agree to renounce the rights envisaged in collective accords and agreements. Such attacks on the workers were not carried through solely as a result of the intervention of the courts. We wish to indicate here that innumerable cases are before the labour courts in the country.

This Conference is commemorating the Centenary of the Organization and serves as an occasion to reflect on everything that the ILO has been able to build for peace and social justice. We are here in the hope that this Organization will continue to fulfil its role. It is a matter of great concern and disappointment that Government and Employer representatives do not recognize the value of the ILO and the system of standards in the development of the balance that is required for world peace. Attacking the system of ILO standards at this time is tantamount to attacking the Organization itself and multilateralism. We Brazilian workers are taking another path, the path of strengthening the ILO, the standards system, the Committee of Experts and multilateralism.

We know that tripartite social dialogue is the cornerstone of this Organization. We have always been open to dialogue and it is precisely the lack of such dialogue that has brought us here today. The Organization has a fundamental role to play as a mediator. In this sense, we request ILO support with a view to reopening social dialogue in Brazil, where it is now completely inexistent. We emphasize that public hearings by Parliament is not tripartism. As in 2018, we will make available to the Committee of Experts all of the information referred to here.

Government member, Argentina – The significant majority of the States of the Group of Latin America and Caribbean Countries (GRULAC) thanks the Government of Brazil for presenting its information and arguments to the Committee on the Application of Standards. We wish to emphasize, once again, our concern and disagreement at the working methods of this Committee and the misuse of the ILO supervisory machinery. In the present case, we are seeing once again how the legitimacy of that machinery, its capacity to generate social dialogue and its results in practice are being seriously affected by a total lack of transparency, objectivity, impartiality and balance in the selection of cases and their treatment within this Committee.

The ILO is intrinsically based on tripartism. Nevertheless, we are seeing how every year GRULAC countries are indiscriminately subjected to international exposure by an exclusively bipartite consultation mechanism, without the participation of Governments, in which, as we all know, political agreements are reached that have nothing to do with the specific situation.

Countries are condemned before they have defended themselves. As a result, the lists of the Committee on the Application of Standards are losing their value and their capacity to inform international society of the real situation of labour relations around the world.

With reference to the comments of the Committee of Experts on the application of the Convention in Brazil, we regret that the Committee of Experts, without objective or clear reasons for doing so, has once again chosen not to wait for the regular reporting cycle for the Government of Brazil in relation to the application of the Convention, which was due this year.

By acting in this manner, the Committee of Experts has once again issued views without specific data, without factual evidence and without having a broader and more complete view of legislation that is complex and still in the implementation phase by the Brazilian authorities, and is under review by the judicial authorities in the country.

We are also concerned that sufficient attention is not being given to the characteristics of the Brazilian legal system which, according to Brazil, affords broad constitutional guarantees for labour and social rights.

Let us recall that, in accordance with its mandate, the Committee of Experts should review the application of Conventions in law and practice, taking into account the different contexts and legal systems, which it has not done in the present case.

Our region continues to be committed to the promotion of collective bargaining on the basis of the principles set out in the Convention. We note the information provided by Brazil that the central objectives of the labour reform include the promotion of collective bargaining, in accordance with the obligations of the country in the context of the ILO.

Government member, India – We thank the Government of Brazil for providing the latest comprehensive, detailed update on this issue. India welcomes the continuing willingness and commitment of the Government of Brazil, to constructively engage with the ILO and the social partners to fulfil its labour obligations. We take positive note of efforts of the Government of Brazil to reform its labour laws in consultation with the social partners and in accordance with its international obligations, as well as national context.

We do not support the inclusion of any country in the preliminary or final list of cases before the end of the reporting cycle deadline and without following due process and for reasons other than the technical merits of a case. We also wish to reiterate the need for constructive tripartite engagement, through a transparent, inclusive, credible and objective ILO supervisory mechanism and process, which is aimed at improving compliance with international labour standards and for its continued normative relevance in the world of work. We wish the Government of Brazil all success in its endeavours.

Employer member, Colombia – I want to refer to two aspects. The labour reform in Brazil is the result of broad discussions held with the social partners for over 20 years. In 2003, a report was submitted to the National Labour Forum with the participation of trade union confederations, employers and the Government and tripartite dialogue meetings continued to be held focused on consulting the social partners in which the principal guidance was expected from workers. The subject was referred to the National Congress through a Bill and not provisional measures, as proposed by the Government. In Congress, ten broad public hearings were held on specific themes in the Senate and the Chamber of Representatives, with another 20 meetings also being held. Specific subjects were discussed, such as collective bargaining, methods of resolving disputes, intermittent work, telework, temporary work and legal security. Over 2,000 amendments were proposed by various social groups and the most diverse ideological trends through a broad democratic process with the legal framework.

The Act seeks to improve industrial relations in Brazil by adapting the law to the new realities, always on the basis of collective bargaining. The intention of the labour reform is to establish more conducive conditions for competitivity, productivity and economic and social development with fundamental labour rights and decent work.

The labour reform in Brazil does not offer blanket authorization to derogate from labour law through collective bargaining, as has been claimed. In Brazil, labour rights and guarantees have constitutional rank, in the sense that collective negotiations are subject to the time and material limits imposed by the Constitution. The reform sought to reduce interference by the Brazilian authorities.

Secondly, the new legislation sets out a clear definition of who are considered to be autonomous professionals and the requirements for their identification. A clear distinction is made between the latter and employed persons. The two are completely different. As their name implies, by being self-employed or autonomous, these workers are governed by different rules than those pertaining to employed persons, and in both cases decent work is respected.

These differences of the concepts and legislation respecting autonomous work are necessary and have already been adopted in many States. Nevertheless, what is important in relation to the present case is that this regulation has maintained the right to organize and to collective bargaining. The provisions of the Act to not represent exclusion from the scope of the Convention, as in Brazil the Constitution ensures that all workers have the right to organize and to benefit from trade union rights.

The reform sought to reduce interference by the Brazilian authorities and therefore its scope is fully in accordance with ILO Conventions, and particularly with the present Convention.

Worker member, Argentina – I am speaking on behalf of the Confederation of Workers of Argentina (CTA Workers) and, by delegation, the General Confederation of Labour (CGT) and the Confederation of Workers of Argentina (CTA Workers). The labour reform adopted by Brazil in 2017 affects all the principles which gave rise to the ILO and are set out in its Constitution. Its results are tangible: the coverage of collective bargaining is being significantly reduced; the regulation of labour relations is moving ever closer to individualization; the race to the bottom for workers’ rights is being exacerbated; and, finally, social dialogue has been voided of content as it is no longer based on one of its essential elements, its voluntary nature.

In practice, legislation is compulsory when there has been no prior tripartite debate leading to agreements that supplement collective bargaining. It is telling that we are discussing these issues in the Centenary Conference of the ILO. Will this be the model of regulation on offer for the next 100 years? Nothing good will come of that.

Let me summarize the principal issues in Brazilian legislation in relation to collective bargaining as a basis for a global analysis:

- the reform allows collective agreements and accords to derogate from the minimum rights set out in the labour legislation;

- it promotes the centralization of bargaining by providing that enterprise agreements prevail over branch agreements;

- it facilitates the negotiation of individual contracts, which prevail over collective accords;

- it prohibits the inclusion of clauses to maintain the effects of collective agreements if they are not renewed when their validity has expired;

- it broadens the concept of autonomous or self-employed workers with a view to their exclusion from the scope of this fundamental law.

The application of these provisions completely undermines the obligation to promote collective bargaining under the terms of Article 4 of the Convention. It is a system that eliminates all safeguards intended to promote an improvement in workers’ rights. In view of this model, what is happening is logical: a substantial reduction in the volume of collective agreements and accords. If the power of employers becomes the sole source of regulation, why would they promote collective bargaining? The argument continues to be the cost of labour as an obstacle to investment, and that lowering costs necessarily generates employment and increases investment and competitivity.

But, this way of presenting the problem obliges us to accept an ethically unacceptable dilemma: accepting precarious employment which can hardly be classified as decent work. We cannot calmly accept a working day of 12 hours without conjuring up the memory of the Chicago martyrs. We could not look our colleagues in the eye and convince them that work after the working day is not considered overtime and is not reflected in their pay. We could not feel satisfied and endorse the legalized fraud of workers who issue bills as self-employed workers. We would be ashamed as leaders if we accepted piecework without the guarantee of minimum earnings.

Collective bargaining in Brazil is losing weight and meaning as a tool for the regulation of terms and conditions of employment, as set out in the Convention. One of the essential characteristics of collective bargaining is its collective roots, which are then converted into a compulsory legal standard. The bipartite quest for the common good is essential in order to achieve that, but is prevented by the contents of this law.

The attack on collective bargaining through the labour reform in Brazil is far from being confined to its national border. Indeed, its provisions challenge the model of industrial relations designed by the ILO as its central task. Overturning this reform is key to the debate on the future of work, which is still pending.

Government member, Algeria – Algeria supports the statement by the Federative Republic of Brazil concerning the Convention and the issue of collective bargaining. We have taken good note of the information provided according to which the labour reform in Brazil has the objective of promoting collective bargaining.

Algeria fully supports the position of Brazil and recalls the important role of the supervisory bodies in evaluating compliance with international labour Conventions by drawing attention to both the need for a basis of transparent rules and clear interpretive mechanisms for the effective application of international labour standards.

Algeria considers that the economic and political situations of certain countries are frequently not adapted to the interpretations of the supervisory bodies, which justifies the complexity and flexibility of international labour standards, including the present Convention.

Brazil has ratified a significant number of international labour Conventions, which is not surprising, as Brazilian labour legislation has reached an evolved stage and certain ratifications have enshrined practices that were already established.

Finally, we consider that the provisions of Act No. 13462 of 2017 are in conformity with the Convention. The right to collective bargaining could not develop spontaneously. Collective agreements and accords are tools that are intended, in global terms, to bring improvements for both employees and enterprises. The law may set certain limits on contractual autonomy in the world of work, taking into account national requirements. In that light, the articulation between the scope of public order and the limits of expression in collective labour agreements and accords appears to us to be coherent with the objectives and provisions of the Convention.

Employer member, Argentina – We are here to express our support for Brazilian employers in their defence of the value of a standard which sets the hierarchy for collective bargaining and, as we have affirmed, is an essential tool to guarantee decent work in the country. Incentives for social dialogue and the appreciation of collective bargaining have always been important objectives in this Organization, as they encourage consideration of the interests and concerns of the social partners by preserving the freedom of employers and trade unions to negotiate.

In the same way as many other countries in the world, Brazil has travelled along a specific path characterized by continual transformations in the world of work and production.

The adaptation of the system of rules governing these relations became a necessity, an enabling institutional response, to ensure that the dynamism of industrial relations has a correlation in rules that can offer adequate protection in the real industrial relations situation.

It is necessary to recall that collective bargaining is an instrument of mutual concessions and gains which allows the negotiation of more appropriate rules for each sector, region, occupation and enterprise.

And yet, the Act under discussion does not make collective bargaining compulsory, but only regulates industrial relations based on the free and spontaneous decisions of enterprises and unions. On the one hand, the reform is intended to reduce interference by the public authorities in the will of the parties, in conformity with the principles of the Convention.

In this context, assessment of the elements which resulted in the inclusion of Brazil on the list for the second successive year becomes necessary. In order to ensure the transparency and hierarchy of the supervisory system that this Committee safeguards, we consider it necessary to recall that the mission of this Organization is to be an instrument of peace and to maintain harmonious relations between employees and employers. Bringing forward this case for discussion for the second successive year is giving rise to conflict and runs counter to the purpose of the supervisory system. Under no circumstances must it be permitted that the cases proposed for analysis by this body are based on speculation concerning the domestic political situation of a country.

Finally, we hope that the conclusions of this Committee will be very positive and appropriate, which would be to value collective bargaining and social dialogue as the most effective instrument for resolving the issues that may arise out of the natural conflicts of interest that are characteristic of industrial relations and labour, thereby ensuring lasting social peace.

Observer, International Trade Union Confederation (ITUC) – I am speaking on behalf of all African workers. This period, in light of the provision of the Convention, are meant to enhance national legislation and not the other way around. The point here is that the national labour law reform that brought about the CLT attempts in some ways to undermine the provision of the Convention.

This is why different interpretations are conjured to collective bargaining processes, to the extent that the relationship between collective bargaining and the law is not advancing the real and unambiguous intentions of the provisions of the Convention. Like the Committee of Experts has observed, the current collective bargaining practices have introduced the general principle that collective agreements and accords prevail over legislation, and it is therefore possible through collective bargaining to derogate from the protective provisions of the legislation.

From our experience in Africa, where there are multiple layers of collective bargaining, especially where enterprise and sectorial, as well as national collective bargaining processes are engaged, the tendency for legislation to create the condition for downward competition between the employers in relation to terms and conditions of work and employment, has shown to be very harmful to industrial relations. It is clearly undermining the practice of collective bargaining as an instrument for improving conditions of work.

This practice is dysfunctional to collective bargaining. It can harm workers, especially those at the enterprise level and review downwards their benefits. This much the Committee of Experts observed in their copious reference to the report of the Public Ministry of Labour that showed that in the specific context of the collective labour relations in Brazil, the principle set out in section 611-A of the CLT is “likely to result in trade unions being subject to threats and pressure to accept derogations from the legislation, and to authorize all trade unions, irrespective of their level of representativity, to negotiate below the national legal protection, which will act as an incentive to corruption in collective labour relations”.

For us in Africa, we were excited and encouraged that such understanding on how you use progressive collective bargaining processes to enhance pay, morale, and industrial harmony, is exactly what the Lula Da Silva Government introduced and encouraged. We fondly refer to this as “Lula Movement”, which is partly responsible for taking millions of people out of poverty, including workers.

The Government of Brazil should be encouraged to reverse provisions of the CLT that run contrary to the provisions of the Convention and this should be done through a genuinely consultative process and in good faith, carrying along all the tripartite partners.

Government member, China – The Chinese delegation listened carefully to the statement made by the representative of the Brazilian Government. We noted that the reform of the Brazilian labour system is designed to promote collective bargaining as an essential goal. We appreciate the Brazilian Government’s commitment to promote collective bargaining. The Chinese delegation believes that, at the important moment when the ILO celebrates its 100th birthday, it should earnestly implement the action plan for reforming the standards of the provision mechanism, continuously improve its productivity, impartiality and transparency. It is reasonable for the Brazilian Government to closely integrate its own national conditions and legal system in a process of implementing the right to organize under the collective bargaining Convention. We hope that the ILO will provide the necessary technical support for the Brazilian Government to implement the relevant Conventions.

Employer member, Costa Rica– In support of the employers in Brazil, I would like to start by indicating that the comments of the Committee of Experts in relation to sections 611-A and 611-B of the Brazilian law are based on an interpretation of the Convention that is not borne out in any way by its provisions.

There is no provision in the Convention which provides that the objective of collective bargaining is to obtain agreement on terms and conditions of work that are more favourable that those set out in the national legislation. More specifically, Article 4 does not envisage any limitation on collective bargaining in the sense that it can only result in more favourable conditions than those established by law. The same applies to Convention No. 154. In reality, those Conventions explicitly provide for the possibility of adopting measures that are adapted to national conditions. In a changing world and in light of new forms of employment, it is important for laws to safeguard the freedom of the parties to adapt to change and modernization.

This is precisely what is envisaged in the Convention and in the innovations in Brazilian legislation on the bargaining of conditions of work and of employment.

Observer, IndustriALL Global Union – This is the second and consecutive year that Brazil is under CAS supervision for its Government’s violations to the Convention. The Brazilian Government continues to systematically ignore and not implement any of the Committee of Experts’ recommendations especially those related to Article 4 of the Convention. The Global Union would like to place on record their deep respect for the work of the Committee of Experts. These eminent legal scholars carry out their mandate to provide impartial and technical analysis of international labour standards with the utmost rigour. We thank the Committee of Experts for helping ensure countries effectively implement the Conventions they ratify, especially those States that wantonly flout their international obligations.

Since 2008, we have seen lots of labour reforms around the world, especially in European countries. The result was less coverage of collective bargaining, greater share of precarious work, lower wages and growing unemployment. That is exactly what Brazil has been experiencing in the last two years since the labour reform, reaching the alarming figure of 13 per cent of unemployment and 54 per cent of informal work.

As pointed out by the Committee of Experts, new section 611-A of the Brazilian Consolidation of Labour Laws Act has catastrophic consequences for workers. In the aviation and maritime sectors, derogations allowed by section 611-A can interfere and slash sector-specific safety standards, including flight and sea time limitations and minimum rest periods. Some of these vital protections derive from ILO Conventions. The safeguards contained in section 611-B are simply not sufficient. Moreover, even ILO Conventions are not protected, and it is possible that collective bargaining will derogate from their application as well.

Furthermore, the rights of Brazilian civil servants to collective bargaining was restricted by a recent presidential veto to Law No. 3831 even after ILO Convention No. 151 was ratified by the Congress of Brazil. The Bill was in fact built by consensus and unanimously approved by the Federal Senate and the Chamber of Deputies in Brazil.

If the aim of the labour reform was to promote collective bargaining, the result has been the opposite. In the Centenary of the ILO, we should be celebrating successes and achievements, but at the same time, we as constituents have the obligation of not closing our eyes to regressive violations and make sure to bring Brazil’s legislation into conformity with the Convention.

Government member, Russian Federation – First of all, we would like to thank the distinguished representative of the Brazilian Government for his comments on the case and also for what he said about the procedural aspects of it. Brazil has been steadily working to improve its mechanisms for implementing the Convention. We welcome the attachment of the Government to moving forward tripartite cooperation in accordance with its international obligations towards the International Labour Organization. We understand the concern of the Brazilian authorities about certain methods of work followed by the supervisory bodies of the ILO. Thanks to tripartite efforts, recently, decisions have been taken in this respect, including concerning work in the area of standards. Work to improve these standards-related procedures in our opinion needs to be continued. Generally speaking, we have doubts about reviewing this issue in the Committee and we do hope that, in the future, we will not have to return to it again.

Employer member, Algeria – The case that we are examining today concerns Brazil and a Convention that certain accuse the country of undermining. We should refer to the statement by the Government of Brazil, recalling that this case was examined by the Committee last year, and on the same grounds. It was recognized by this same Committee that there was no element indicating a violation of the Convention.

As an Employer member of this Committee, I am bound to express my great surprise at this claim that has been made against the Government of Brazil on a recurrent basis for several years. How can we today accuse a country in which over 17,000 registered workers’ trade unions are active in full freedom? This is a question that needs to be asked. Also, how can we accuse Brazil of not being in compliance with the Convention when it is a country that enshrines trade union pluralism, the right to collective bargaining and social protection, as well as dialogue, in its fundamental law?

I think that Article 4 of the Convention is very clear and that each country has to take measures adapted to its national situation, as well as Article 5 of Convention No. 154, which specifies that measures appropriate to national conditions shall be taken to extend collective bargaining to all matters relating to the determination of working conditions and terms of employment with a view to the regulation of industrial relations.

To resolve these disputes, Brazil has always favoured dialogue, negotiation and rights, and has never taken measures against workers that are contrary to national legislation or the Convention.

I believe that the national legislation in Brazil is in conformity with the Conventions that it has ratified, including Act No. 13467, which reinforces free and voluntary collective bargaining, thereby providing a framework for the industrial relations legislation. Brazil has always been characterized by a policy that gives priority to dialogue and consultation with the economic and social partners, as illustrated by the various laws which provide the framework for industrial relations.

Brazil aspires to develop a State in which the rule of law prevails, and therefore ensures that the law is applied in all fields, including the exercise of trade union rights and collective bargaining. In this respect, it is completely normal, in my view, that trade unions must comply with laws and regulations. Explanations have been provided on many occasions to the Committee by the Government of Brazil, without them ever being taken into consideration. We have the right to raise this type of question when we see the harassment to which Brazil is subject, a harassment that undermines all the progress made in compliance with Conventions.

Worker member, Republic of Korea – I speak on behalf of the Korean Confederation of Trade Unions. First I would like to raise my serious concerns about some of the speeches we heard today on the case of Brazil who is attempting to unduly politicize this Committee rather than based on the analysis of the implementation of the Convention in a technical way. This argumentative manner in this question will bring the Government into discredit.

Law No. 13467 of 2017 amended more than 100 articles of the Brazilian consolidation of labour law. Among the many aspects, I want to address some issues that affect Brazilian workers directly. Before the reform, Brazilian legislation prohibited pregnant women and nursing mothers from working in hazardous or unhealthy places. Amazingly, these guarantees were withdrawn demonstrating complete disrespect on the part of the Brazilian Government for the health of women and their children. Fortunately, we received the news that last week the Federal Supreme Court of Brazil annulled this change thanks to a judicial demand promoted by the unions. We hope that the many other demands that challenge constitutional and conventional points of the labour reform will be equally ruled in favour of workers.

Another very worrying aspect of this dispute is the absence of a broad social tripartite dialogue and we are astonished to learn that the National Commission for the Eradication of Slave Labour, CONATRAE, has been disbanded.

Finally, the way in which the Brazilian State has related to the Conference Committee on the Application of Standards and to the Committee of Experts is to say the minimum, disrespectful. Constructive criticisms that seek to improve the functions of the system are always welcome but that is not what we observed in this particular case. We therefore encourage the Government to resume and re-engage in a broad tripartite social dialogue, taking into account, in particular, the observations of the Committee of Experts.

Government member, Egypt – I would like to thank the Government of Brazil for the important information given to us in the segment they have just made by the Government representative about the measures it has taken in order to implement the Convention. In this respect, there is of course an important need to further improve these mechanisms for that the Brazilian workers can get what they want. The Law issued by Brazil aimed at increasing collective bargaining and not at the regression of collective bargaining as shown by the Government representative in figures. We would like to welcome this Law and we support it. We are fully satisfied, because the results of the surveys undertaken by the World Bank on the law concerned and its positive impact in increasing economic growth and providing opportunities for employment and combating irregular employment. We also support the social dialogue procedure undertaken by the Government in the presence of Worker representatives and Employers before enacting this Law. We would like to encourage the Government to continue this social dialogue in all the fields of labour and to move forward in order to improve the working conditions, so that it will be in conformity with the international Conventions. We hope that this Committee will take into account the important aspects taken by the Government of Brazil and the challenges it is facing.

Employer member, Bolivarian Republic of Venezuela – We reiterate the views of the Employers’ group on the inclusion of the case of Brazil on the shortlist and our concern that the case was included for reasons that are not objective or are of a political nature and, in this respect, we call for the tripartite constituents to review and determine with absolute clarity objective criteria for the establishment of the list of countries whose cases of violations of Conventions are included on the shortlist for discussion by this Committee.

On the substance we consider that the labour reform adopted in Brazil, more specifically in Act No. 13467 of 2017, is not only in compliance with, but also emphasizes and develops the principles set out in the Convention. The earlier 1943 legislation was clearly not adapted to the increasing changes in the world of work. The new legislation establishes modern and flexible criteria that are in full accordance with the current demands of labour and production, and in any case gives priority to collective bargaining practised in a responsible and voluntary manner between the parties to regulate conditions of employment. It also adds value to and strengthens collective bargaining by protecting the agreements concluded by the parties, as a means of complying with the objective and purpose of the Convention, which is to permit adaptations to labour regulation as required by the circumstances of time, activity and place.

The discussion is focused on the powers attributed by the new Act to the parties to agree through bargaining the specific non-application of certain legal provisions. But that in no way implies that the agreement that is concluded, or the objective of the working conditions agreed, is not more favourable to the workers than the minimum standards guaranteed by law. Indeed, these provisions are only applicable in exceptional circumstances in which the high level of income and the intellectual or professional status of the workers are taken into consideration, as well as the power of equitable negotiation by the unions that represent them, which is based on the assumption that the agreement concluded, in full exercise of freedom of negotiation, will be substantially better through the achievement of additional benefits not envisaged by the law.

The agreements concluded through negotiation, or collective agreements, in accordance with the new Act, can in no case affect or reduce the 30 fundamental rights of workers set out in the Federal Constitution. This means that, as with any exceptional rule, it is of very limited application. Moreover, these specific agreements are applicable to a single situation in the respective sector, region or enterprise, for a maximum period of two years. If no specific collective accord is concluded, the labour legislation applies. In this way, the rights of workers are fully protected by the collective contract or, where there is no such contract, the labour legislation.

Adopting a contrary interpretation would involve disregarding the negotiating capacity of workers covered by the legislation, as justified by their level of remuneration and intellectual capacity, and disregarding the bargaining responsibility and power of the unions. We therefore welcome the labour reform in Brazil, which modernizes its situation in the world of work.

Worker member, United States – Canadian workers join our statement. As we confront the challenges and opportunities that have begun to arrive and will accelerate with transformations in the world of work, those who care about growing inequality and polarization in so many countries keenly note the deliberate weakening of institutions that work for social justice. Labour market institutions, social dialogue and collective bargaining are key among them. The employment relations itself is one such institution. In the United States, we have seen a decline in these institutions over decades. Over that time, inequality has steadily increased, social justice decreased, polarization spiked. The drastic, abrupt and reckless changes to Brazil’s Labour Law in dismantling of institutions are broad in scope. I will focus on the creation of the individual autonomous worker and its impact on collective bargaining rights.

In their report, the Committee of Experts have registered concern about the impact of this category on bargaining rights. Noting that the Labour Code makes no accommodation for the rights of these workers, the experts called on the Government in March to inform them of any progress in consultations to address this vast and growing section of the workforce that have no access to bargaining rights. In response last month, the Government frankly stated that the Convention “is not by definition applicable to autonomous workers as collective bargaining is unsuited to the occasional and independent nature of their activities”. The Government further stated that “the competent authorities in Brazil can unveil genuine employment relationships beneath disguised service agreements”. Perhaps they can, but will they? This Government has eliminated the Labour Ministry, reduced worker access to labour justice and unions’ capacity to act in solidarity with unaffiliated workers by creating high costs for workers seeking labour justice and by denying unions’ dues check-off even when they have been negotiated by employers and democratically approved by workers in assemblies.

In response to the Committee of Experts’ question regarding the exclusion of these workers, the Government provides no information. In the best of situations, managing the creation and expansion of this category of workers would require a highly capable labour ministry and empowered social partners. Brazil presently has neither. In spite of updates to surveys by Brazil’s IBGE, even many months after the autonomous worker category was created, no revisions have produced exact information on the size and status of this new part of the workforce.

According to the best proxy, that of the self-employed, in the first quarter of this year Brazil had nearly 24 million such workers, more than a quarter of the total workforce. Less than a third of those register and contribute to social security. Less than 15 per cent of all self-employed are formally registered as such. Aside from the lack of social protection of these workers, the impact of this number of workers without protection on society will be disastrous. Access to collective bargaining provides some protection to these workers but Brazil has done nothing in this regard in its reckless changes to labour law.

Finally, these are not well-paid and highly educated workers well positioned to negotiate for themselves. The average salary of the self-employed in Brazil is US$417 a month, 1.7 times the minimum wage, considerably below the national average minimum. If any class of worker needs access to collective bargaining, it is surely these workers yet the Government has closed the door to them, embracing and legalizing their exclusion rather than acting to combat it. We thank the Committee of Experts for drawing this Committee’s attention to this exclusion.

Government member, Angola – I speak on behalf of the Angolan delegation. We recognize that the Brazilian Government is now undergoing many measures related to the right to organize and collective bargaining. Therefore, we encourage Brazil to continue this practice.

Employer member, Panama – The ILO is the only agency of the United Nations that is tripartite, and it draws its strength from negotiation, consultation and agreement. In the case of Brazil, it is important to emphasize that the labour reform of 2017 is intended to achieve peace through the reduction of poverty, and individual and collective bargaining. The labour reforms in Brazil are not in violation of any ILO Conventions and cannot and must not be analysed in isolation, but within the whole economic, political and social context of the country.

Up to 2017, before the new Act, there was an accumulated total of 2.63 million court actions. In December 2018, less than a year after the implementation of the new Act, that number was reduced to 900,000, or almost 40 per cent fewer. That is social peace!

With regard to the autonomy of the will of the parties, the new Act permits negotiation and mutual agreement as a means of termination of the employment relationship. Accordingly, in the first four months, 73,000 accords were negotiated. This is also labour peace.

In the fight against informality, which attacks both workers and employers, a series of measures have been implemented to create new forms of work which are precisely intended to enable the country to generate new and more jobs. Accordingly, over 97,000 new jobs have been created, thereby reducing poverty.

The new Labour Act in Brazil is not in violation of any agreement or of the Convention, as it promotes individual and collective bargaining and consultation, reduces informality, reduces poverty and promotes social peace, and we believe that it must be analysed in this context. There is therefore no need to request any further reports from the country.

Worker member, Italy – I am speaking on behalf of the Italian trade union confederations and the reason for my intervention is a great concern for the workers of Brazil. It is an intervention that makes reference to the long experience that we have had of collective bargaining in my country, Italy. It is a concern that is justified, especially when it is recalled that the city with the highest number of Italian residents after Rome is not Turin, Milan or Naples, but Sâo Paulo in Brazil.

Over the years, Italy has been a laboratory in guaranteeing balance, but never through the law, as a result of the capacity of the social partners to find the point of economic equilibrium, and always through collective bargaining. All of the reforms that we have made over these years were never to reduce, but to extend collective bargaining to encompass individual forms of work, and always with the participation of the social partners.

We were impressed in years gone by with the data and results obtained by collective bargaining in Brazil. Not only were there income distribution programmes, Bolsa Familia, Fome Zero, but also an increase during those years of 90 per cent, as indicated by all the reports, in collective bargaining, allowing 40 million people to escape poverty.

And now, incontrovertible data indicate that the labour reform, Act No. 873, has led to a reduction in employment and a lack of social protection in the country. This is a political fact that concerns us and which therefore has to be raised in this type of debate.

In 2018, a request was made for information, as well as for the involvement of the social partners. In 2019, the request will have to be that, in light of the results that have been seen, it is necessary to convoke, contact and call for the participation of the social partners so that the Act can be jointly revised.

On the eve of an agreement that may be important between the European Union and MERCOSUR, and we know that Brazil accounts for 80 per cent of the GDP of MERCOSUR, guarantees must be provided of the supervision, and in particular of the role and participation of the social partners, who in Europe are central to the European trade union and social model.

From Italy, from the industrial relations system of my country, from the European system and mechanisms of social dialogue, we issue a call for responsibility to the Government of Brazil.

Government member, Philippines – The Philippines recognizes the significant efforts Brazil has so far made to give full effect to the Convention. It must be noted, however, that reforms and their outcomes cannot be achieved and felt overnight. In their jurisdiction, just like ours in the Philippines, there are legal procedures and processes to be observed and strictly complied with, especially in the field of legislation, consistent with Federal Constitution of Brazil and other national laws.

The Philippines also believes that in view of the complexities of the reforms envisaged, Brazil must be allowed sufficient and reasonable time to institutionalize labour reforms.

Further, institutionalizing labour reforms is not the sole function of government. The Philippines thus expects Brazil to engage its tripartite partners in a meaningful consultation, in the spirit of genuine social dialogue, to address the issues raised and adopt the needed measures appropriate to national conditions. The Philippines trusts that Brazil will remain committed to its obligations under the ILO Convention, and to continue its constructive engagement with its social partners.

The Philippines also shares some of the concerns of Brazil on the working methods of the Committee of Experts, to the extent that tripartism, consensus, and transparency should be fully applied, in view of improving its procedures and building confidence among governments and social partners, as well as to avoid undue politicization of country cases.

Finally, the Philippines requests the ILO, including its supervisory bodies, to continue providing its member States the needed technical assistance and guidance to ensure full compliance with Conventions that no government, worker, or employer will be left behind as we prepare for the future of work.

Employer member, Belgium – The Employers’ group has serious questions concerning this case, which is already coming back to our Committee, after being examined in 2018. The Employers accordingly express their concern at the early examination of Act No. 13467 by the Committee of Experts. We have the impression that the Committee of Experts did not take sufficiently into account, in this case, the information provided by the Government of Brazil and the position of Brazilian employers.

On the substance, the Employers are not in agreement with the Committee of Experts on the fact that the revised versions of sections 611-A and 611-B of the Consolidation of Labour Laws does not adequately promote the widest possible development and utilization of machinery for the voluntary negotiation of collective agreements within the meaning of Article 4 of the Convention. Is it not strange that the Committee of Experts is criticizing Brazilian law for recently introducing the primacy of collective labour agreements and accords in relation to the legislation, while maintaining constitutional social rights.

On the contrary, we observe that collective bargaining is maintained and promoted by the new Brazilian labour law, and that collective agreements are indeed placed above other types of standards, while guaranteeing full respect of the constitutional social rights. That is because Parliament made a distinction between subjects that are negotiable and those that are not.

Brazilian unions are not prevented from collectively bargaining better conditions of work for their members. The scope of voluntary bargaining has even been increased, as not only higher standards may be concluded, but also, for example, stricter standards in exchange for less strict standards in other areas, which is in conformity with the autonomy of collective bargaining.

Finally, the causal link between the reform and the alleged reduction in the number of collective agreements has not been established by the Committee of Experts.

From an international comparative perspective, national legislation is frequently found which allows collective agreements to introduce exceptions and derogations from the law, in accordance with the Constitution and so-called subjects relating to public order.

It therefore appears to us important that the Brazilian Government, in consultation and collaboration with the social partners, is able to continue examining the impact of the reforms and, where appropriate, to decide on any appropriate adjustments, and that in any case the Government is not required to make any amendments to the law on the basis of the Convention.

In conclusion, I wish to recall that social peace and prosperity are necessarily based on social dialogue. Such dialogue must therefore be encouraged by governments. Such dialogue is based on the importance of collective bargaining, on mutual trust and the non-interference of the public authorities in bargaining, which must remain the domain of the social partners.

Worker member, Germany – Brazil has been a Member of the ILO since its foundation in 1919. When in 1948 the Convention was adopted, the Brazilian delegates unanimously voted in favour. Brazil also belongs to the countries that have ratified the most ILO Conventions but this endorsement of international labour standards seems to be a thing of the past. Rather, the increasing erosion of labour and social standards has been on the agenda for some time under the mantra of flexibilization. Reforms whose stated aim was to improve the situation of workers have on the contrary led to the increased precarity of employment and an increase in the unemployment rates. A policy of polarization has steadily widened the gap between workers and employers.

One example is the possibility under article 611-A of the Consolidation of Labour Laws that collective agreements take precedence over legislation and that collective agreements and agreements negotiated at company level take precedence over other collective agreements enforced in this field. The items listed in this provision including, for example, rules on working time, employee representatives at work, access to the employment protection programme or the classification of the degree of unhealthy working conditions are not exhaustive. That is, the content can broadly be extended by the parties with the exception of a number of rights listed in article 611-B. Article 611-A makes it possible to specifically undermine laws and collective agreements that set standards for the protection of workers. To give a recent example, in May 2019, a regional labour court in Sâo Paolo banned the operator of an air taxi company by way of a temporary injunction to urge crew members to sign agreements that include, among others, a clause which discards all the individual or collective instruments that had already been signed. This is the reality in many cases, companies are putting pressure on their employees to make unfavourable arrangements. What bargaining power do you have as an “autonomous” worker if you run the risk of losing your job?

Article 611-A reverses the basic idea of collective bargaining agreements. They are intended to enable the contracting parties to agree on better conditions for employees, however, they should not undermine the existing legal protection level. This is also the opinion of the Committee on Freedom of Association where it notes that the procedures for systematically promoting decentralized negotiation of working conditions which are less favourable than higher-level ones are leading to a global destabilization of collective bargaining mechanisms and to a weakening freedom of association and collective bargaining, which are contrary to the principles of Conventions Nos 87 and 98. We therefore urge the Government, in cooperation with social partners, to amend article 611-A and 611-B in such a way that collective agreements can differ only in favour of workers from laws and other collective agreements.

Government member, Colombia – Colombia expresses its firm commitment to the ILO and its supervisory bodies. The Committee on the Application of Standards is the highest supervisory body of the ILO, and for this reason we trust that improvements will continue to be made in its working methods. That will undoubtedly increase the confidence of everyone and will make it possible to have a supervisory system that is constantly strengthened.

Although document D.1 indicates in section VI the criteria that have to be taken into consideration for the selection of the individual cases of countries called before the Committee, we regret to note that both in the preliminary and the final list a good number of cases do not follow the technical criteria for the establishment of these lists, including the present case.

We appreciate the commitment to the promotion of collective bargaining, based on the principles set out in the Convention. We take due note of the information provided by the Government of Brazil that the central objectives of the labour reform include the promotion of collective bargaining, in accordance with the obligations of the country in the context of the ILO. Our country commends the efforts made by the Government of Brazil to increase collective bargaining and we hope that progress will continue to be made through tripartite social dialogue.

Employer member, Brazil – As you are aware, we have no national federation of employers in Brazil, national association of employers in Brazil, we do have a variety of national confederations which gather employers from different sectors. We have in this room today the national confederations of agriculture, industry, commerce and service, transportation, financial system, health services and insurance, and I am honoured to speak on their behalf.

At the outset, we strongly support the statement by the Secretary of Labour in the sense that this is a case based on weak evidence, flawed data and very fragile information and we think that there is a piece of information that is missing in our discussion of today, and this is, we must find a solution for labour union financing in Brazil. This is the point – before the labour reform, we had the workers that had to contribute to one specific labour union, it was mandatory by law, and on the other hand, we had the labour unions with the monopoly on a certain category, within a specific geographic area, to collect those financial contributions.

So it comes as no surprise that we have today 17,000 labour unions in Brazil. It is by far the largest number in the world, it is about 90 per cent of all unions in the world, which means, and I stress this point, nine out of ten labour unions are located in Brazil. It was a total collection of some US$4 billion.

Then came this labour reform, which again was approved in Congress. It was approved in the lower chamber after ten public hearings, it was approved in the Senate after 22 public hearings, and it was challenged in the Supreme Court with no success, this reform, and now workers do not contribute on a mandatory basis any longer, they do not “must” contribute, they “may” contribute to labour unions, and therefore, the revenue drops some 90 per cent. We have a number of labour unions closing down in Brazil.

We must find a solution, but the solution does not lie on presenting a case based on flawed data, weak information and fragile arguments. The solution lies in adapting to a new vibrant economy by convincing workers that the labour unions are effective and the representative.

As the conclusion, we urge this Committee to acknowledge in its conclusion that there has been no violation whatsoever of the Convention.

Worker member, Portugal – We are speaking on behalf of the Confederation of Trade Unions of Portuguese-speaking Countries, which includes the trade union confederations of Angola, Brazil, Cabo Verde, Galicia, Guinea-Bissau, Mozambique, Portugal, Sao Tome and Principe and Timor-Leste.

We are following with great concern all of the measures adopted in Brazil in relation to the labour reform of 2017, including: the generalized possibility to derogate from legal standards which must afford a minimum of protection to workers; the primacy given to enterprise level bargaining to the detriment of sectoral bargaining; the possibility to impose less favourable conditions than those obtained through collective bargaining in individual contracts of employment for workers who barely earn above a certain level, and to remove certain groups of workers from the protection afforded by collective bargaining (such as autonomous workers). All of this is the result of an ideological vision that is taking us close to what the troika attempted to apply in Portugal during the period of financial crisis.

These are rules that are intended to undermine, weaken and even extinguish the right to collective bargaining and the role of trade unions, always under the pretext of increasing legal security and contributing to social progress, and which have the unique real effect of challenging the fundamental principles, values and rights defended by the ILO, reducing the value of work and subjecting it to the so-called economic freedoms.

In Portugal, similar measures contributed nothing to the growth of the country, although they succeeded in reducing labour rights, increasing poverty, reducing the annual coverage of collective bargaining in only a few years and requiring investment in post-crisis measures.

The portrait of Brazil is very similar to this in view of the introduction of the measures indicated above. It is therefore fundamental to establish a legal framework that guarantees the full independence and right of unions to participate, accompanied by a threshold of legal protection for fundamental rights, based on the principles of collective bargaining and a system of industrial relations that safeguards the fundamental role of collective bargaining for all workers. This is the only way of establishing the fundamental basis for economic growth and real, sustained and equitable social progress.

Worker member, Spain – We are here to supervise the standards system. The Brazilian labour reform and Act No. 873 which establish that collective bargaining may worsen the legal regulation of fundamental labour conditions to guarantee decent work in Brazil, are not under examination here for political reasons, but because they are in clear violation of the Convention.

The legislation under examination here permits a reduction in the level of regulation set out in the national legislation, including in the international Conventions ratified by Brazil, in relation to working time, rest periods and the remuneration system, among other areas. They also establish the primacy of enterprise agreements over sectoral collective agreements, and their capacity to modify legal regulations respecting working conditions for others with lower levels of guarantees, de facto excluding trade unions from bargaining.

With the labour reform and Act No. 873, the Government of Brazil has brewed up and guaranteed the perfect storm against the nature of collective bargaining, the collective rights of women and men workers and the regulation of certain conditions of decent work, in violation of the Convention in law and practice. The power that is attributed to collective bargaining to deviate from legal provisions establishing the minimum levels for industrial relations explodes the nature of bargaining and its specific function as an instrument for improving working conditions and the quality of life, and renders labour legislation so flexible that it removes protection from the working class and trade unions to the extent that they are left the victims of whoever wields power in industrial relations.

The Government of Brazil has the responsibility to guarantee social peace and justice, by improving the standards of living of men and women citizens and guaranteeing that trade union rights and collective bargaining serve their purpose and can be exercised normally.

And yet, despite that, the action of the Government is intended to:

- mount a frontal attack against the right of workers to have decent conditions of work;

- endanger the application of the international standards which regulate minimum conditions of work;

- infringe the collective rights of women and men workers;

- slow down the negotiation of collective agreements, the number of which has fallen significantly since the entry into force of the legislative reform in November 2017;

- promote the individualization of labour relations; and

- jeopardize the survival of trade unions.

For all these reasons, and for the serious failure to comply with the ILO Convention that they imply, we consider that the Government of Brazil deserves a firm and strong response from this Committee.

Employer member, Chile – For the second successive year the Committee is having to examine the case of Brazil. And it is important to recall that last year the Employers challenged its inclusion on the shortlist, the reasons why the Committee of Experts examined the case outside the regular reporting cycle and why the examination focused on Act No. 13467, in a situation in which it had been in force for a very short time, making it difficult to be able to assess its impact.

The conclusions adopted last year by the Committee on the Application of Standards only recommended that the Government provide information on the application of the new Act and on the consultations held with the social partners.

And once again this year, the case of Brazil will be examined by this Committee in circumstances in which, although there are new observations by the Committee of Experts, it is sincerely difficult to understand the objective criteria for the selection of the case. And this is very important as the credibility and effectiveness of the work carried out by the Committee on the Application of Standards must have a transparent basis.

We are aware that there are geographical criteria for the distribution of the number of cases by country, and that priority is also given to cases with a double footnote, which is intended to give priority to cases related to the fundamental Conventions of the ILO, and that there are a limited number of cases that can be vetoed by the groups.

Nevertheless, it is of concern to us that the political pressure exercised by any of the constituent groups of the ILO should prevail over the objective criteria of compliance with standards that must guide the work of all the ILO supervisory bodies, including this Committee on the Application of Standards.

With reference to sections 611-A and 611-B of Act No. 13467, it is important to be clear. These are provisions which can in no event affect the fundamental rights of workers set out in the Federal Constitution of Brazil and they relate to “possible voluntary agreements between unions and employers”, which do not involve unilateral imposition and moreover cover a limited period of a maximum of two years.

We therefore consider that the intention behind these provisions is to encourage and promote voluntary collective bargaining, with emphasis on its importance as an instrument for the voluntary use of the parties so as to be able to adapt part of the legal regulations to their specific needs.

Believing that the provisions in question could be imposed unilaterally by employers on unions is to disregard the capacity of the latter to act as spokespersons for the workers whom they represent.

Worker member, Colombia– On behalf of the workers of Colombia, we once again address this Committee to challenge the Government of Brazil as the implementation of its labour Act of 2017 is in violation of the principles of this fundamental ILO Convention. It should first be said that the observations, requests and recommendations of the supervisory bodies, the Committee on Freedom of Association, the Committee of Experts and the Committee on the Application of Standards, breathe life into and realize international labour standards, that their work is fundamental for the Organization and that their views, especially in relation to freedom of association, are the very application of Conventions Nos 87 and 98 or, as we say in my country, you could not fit a sheet of paper between the supervisory bodies and the Conventions.

Yesterday, in this very forum, the Employers made certain reproaches against the Government of Uruguay, which today we consider must seriously be levelled against the Government of Brazil:

(1) the Government of Brazil did not consult, did not ask the representatives of workers and did not inform the Brazilian trade union confederations about the labour reform that it was about to adopt, it simply imposed it;

(2) the Government of Brazil has completely ignored the recommendations made by the Committee of Experts in its reports in 2017, 2018 and again in 2019, in which it indicated that “a legal provision providing for a general possibility to derogate from labour legislation by means of collective bargaining would be contrary to the purpose of promoting free and voluntary collective bargaining”, noted the situation with concern and requested the Government to take measures to bring the Act into conformity with the Convention; and

(3) the Government of Brazil must be criticized with real vehemence for limiting to two years the maximum duration of a collective agreement or accord when the supervisory bodies have indicated that this would be contrary to Article 4 of the Convention.

Finally, we wish to recall that the spirit of the Collective Bargaining Convention, 1981 (No. 154), and the interpretation of the Convention by the supervisory bodies, is that individual agreements in contracts of employment should not be to the detriment of collective bargaining with trade unions and that they must not in turn be able to minimize the guarantees set out in the law. The labour reform in Brazil has precisely the opposite purpose and the Government therefore continues to be in violation of collective bargaining.

Employer member, Mexico – I must begin by recalling that Brazil is one of the countries with the highest rate of ratification of ILO Conventions and that, adopting the same approach, the labour rights that were generated over time were given constitutional rank in 1988, including recognition of collective labour instruments.

It is evident that the so-called labour reform in Brazil has not derogated from or modified the fundamental labour rights set out in the Constitution. The Act only establishes that workers and employers may, if they so wish, in common agreement and voluntarily, establish standards relating to forms of work, in specific circumstances and for a specified period of time, without this being able to affect compliance with fundamental rights, which is in no way a violation of the Convention.

It is important to reiterate and clarify that when there is no agreement between workers and the employer through collective bargaining, the law prevails. It is clear that the labour reform is in accordance with the provisions of the texts established by ILO standards, and in particular this Convention.

One of the fundamental objectives of collective bargaining in the labour reform is so that, through that means, choices can be made relating to the activities and real needs of the work centre, which cannot necessarily be envisaged by the law. All of this is the result of dialogue, mutual concessions and contractual agreements which, contrary to the perception given by the report, affect opportunities to improve conditions of work.

Proof of this is that workers have not been affected by the reform, according to the information available. The concerns have been resolved through legal channels in Brazil, including prior to and instead of raising the general issue with this Organization.

Another telling element is that no workers’ union in Brazil has pointed to any violation of the Constitution, the Convention or any other ILO standard, in relation to the matters under examination. The fact that all of this is clear means that no issues arise. Looking towards the future, and the specific circumstances that will arise in each work centre, we have to recognize that the law is necessary to generate a framework of minimums and maximums.

Nevertheless, allowing regulation through collective bargaining, as the labour reform in Brazil does, it is also indispensable to identify the specific needs and adapt labour conditions to the requirements of the specific activity, for the benefit of the parties, competitiveness, employment and sustainable development.

Observer, Latin American Association of Labour Lawyers – In addition to being Vice-President of the Latin American Association of Labour Lawyers, I also represent the Brazilian Association of Labour Lawyers. I have data that gives clarity to aspects that must be taken into account by this Committee in relation to the technical, not political, dimension of the case.

Since the labour reform in Brazil, a broad range of measures have been implemented which are directly related to the Convention, all examined by the courts in the system of three levels of courts, in addition to the Constitutional Court, in relation to which a long period has passed awaiting a solution. Only in relation to bargaining there are already tens of thousands of court actions, according to the statistical data of the Higher Council of Labour Justice in Brazil.

Coverage of workers by collective agreements has been significantly reduced. According to the Brazilian Association of Labour Court Judges, there has been a reduction of 43 per cent in the number of agreements concluded. However, the impact of the substitution of collective bargaining by individual contracts is broader and more dangerous, as well as a frightening number of artificial transfers of members of the working class to the status of supposed entrepreneurs, concealing conditions of strict dependence and subordination.

In March 2016, the national household sample survey carried out by the Brazilian Institute of Geography and Statistics, an official government body, pointed to the existence of 9.5 million unregistered workers, who are therefore without collective bargaining coverage. By April 2019, this number had risen to over 11,200,000, or in other words, in three years, over 1,600,000 workers had lost protection directly.

We have around 8 million micro-entrepreneurs, following an increase of 25 per cent in two years, almost all employers of their own labour, a figure that raises the question of how the Brazilian working class went to sleep employed and woke up an employer.

Some of the Governments that are present may think that the reform adopted in Brazil has certain similarities with the changes made in their countries. But in no case has there been the paradox of attempting to extend the powers of negotiation, specifically with a view to reducing rights, while at the same time removing all the means and weapons of bargaining under conditions of parity.

It is necessary to invoke article 19, paragraph 8, of the Constitution of the ILO, because Brazil has removed protection from an enormous mass of workers through regressive and anti-union rules, thereby violating the spirit of the Convention, which must be preserved.

Employer member, Paraguay – I want to have the opinion of my delegation recorded with reference to the case of Brazil, which is being discussed here for the second time, which is unjust, despite what has been said by the opponents of the labour reform in Brazil.

The ILO is tripartite in its nature, which requires the fundamental discourse of industrial relations to be totally technical.

It is important to take into account that fact that the labour reform is a national agenda, it is a focused effort, the result of at least 20 years of debate intended to improve labour relations in Brazil, founded on the basic premise of the incentive and value accorded to collective bargaining.

This takes on special importance in the specific case of the labour reform, when it is seen that the basic premise of the reform is precisely to incentivize, protect and add value to free and spontaneous collective bargaining, in the form advocated by this Convention and Convention No. 154, both ratified by Brazil.

The Federal Constitution of Brazil has been established since 1988, among the rights of workers, the recognition of collective labour agreements and accords, and the Supreme Court of Brazil has also taken the position of preserving collective bargaining.

All of these matters were elements of the labour reform, which places emphasis on rules respecting what can be adopted through collective bargaining, including conditions of work, such as: remuneration based on productivity, telework, changes in rest days, among others, without overlooking those that cannot be subject to negotiation, such as the rights of workers set out in the Constitution, including: maternity and paternity benefit, annual leave and occupational accident insurance.

For all these reasons, it can be said that there is no doubt that the labour reform in Brazil is in full compliance with the Convention.

Government member, Argentina – The Government of Argentina thanks the Government representatives, as well as the social partners, who have taken the floor on this item of the agenda. In line with the statement by GRULAC, we wish to indicate our concern with regard to the criteria adopted for the establishment of the list of countries. We observe the persistence of a serious geographical imbalance in the list, which particularly affects our region.

We therefore propose the application of more objective criteria and more transparent methods that draw attention to cases of serious failure to comply with international labour standards, which allow improvements to be proposed addressing as a priority the claims of the social partners whose fundamental rights are most seriously jeopardized.

We listened carefully to the intervention by Brazil on its labour reform. Brazil is one of the countries that has ratified the most international labour Conventions and constantly strives to achieve the necessary harmonization between the texts of international standards and its national legislation. The labour reform in Brazil is a gradual building process that is parliamentary in its nature, in respect of the constitutional guarantees. It is a genuine expression of the challenges that we are currently facing, which require the adaptation of rules to the economic realities imposed upon us by globalization.

Today the social contract is not the same as 40 years ago, and changes are required in accordance with a different world governed by the advances and dynamic of international competition. The need for equitable employment is conditioned by new circumstances and we need to adapt to them while preserving the values of social justice.

It must not be forgotten that the explanations provided by Brazil concerning Convention No. 87 relate to legislation adopted by Parliament following in-depth debate, and that it was applied gradually within the framework of the new labour relations.

It is incomprehensible that Brazil has been included in the list of countries in 2018 and 2019. The pretext of regional balance appears to be a global injustice. Those who founded this Organization looked for decent work and social justice, they did not see children working – they foresaw development, growth and progress. One hundred years later, while Brazil is on the dreaded shortlist, there are many places in the world where workers do not even know of the existence of this Organization. And this means that regional balance must be maintained.

The situation in Brazil, as in many other countries in the world, is not paradise. There is no doubt that the world is plagued by shortlists that are much more serious than those enumerated on ours.

Those of us who are here love this Organization and, for this reason, we want to ensure that in the future the ILO is not in the museum of acronyms. And to prevent that, we must calibrate our strengths and capacities with a critical sense and without complacency. And all of this because we would like in future to be able to think nostalgically about our past, which is now our present.

If we did not put all of this into words, if we remained silent, we would all be assisting in an international complicity of silence.

Employer member, Spain – For the second consecutive time, we are discussing this case, on the same grounds as last year, without any technical basis for the inclusion of this case in the list of cases to be examined by this Committee. We, the members of the Committee, must ensure that only cases of clear infringements of Conventions are included on the list, based on objective methods and criteria. We wish to recall that this case was discussed last year by the same Committee and that in its conclusions it determined that there were no elements indicating failure to comply with the Convention.

On the substance, we are convinced that the collective bargaining promoted by the new labour reform is not in violation in any way of ILO Conventions, and particularly this Convention.

We consider that, with the new Act, collective bargaining is taking on greater relevance by enabling the representatives of enterprises and workers to negotiate better conditions than those set out in law. This is the meaning, and only this, that must be conferred on the primacy of collective bargaining in relation to the law, as set out in the new legislation.

All of this applies without undermining in any way the labour rights guaranteed by the Constitution.

At the same time, we must recall that Article 4 of the Convention must serve as an argument for promoting voluntary negotiation. In this respect, the Brazilian legislation has merely reinforced the principle of collective bargaining.

However, in addition to what has already been said, we wish to emphasize that the reform has already begun to produce its first positive results, among which we must refer to the following:

- the reduction by 40 per cent of the labour disputes going to court;

- the modernization of labour legislation;

- the incentives to promote dialogue and avoid legal disputes, which resulted in 82,000 mediation awards in 2018; and

- greater facilities for the recruitment of workers.

Special attention should be drawn to the important debate held by the social representatives during the adoption of this legislative proposal, and the consultation with civil society by the Congress, in strict compliance with the legislation in force.

In light of the above, the Committee is bound to conclude that Act No. 13467 is in compliance with ILO Conventions.

Government member, Panama – The Government delegation of Panama welcomes the explanations provided by the distinguished delegate of Brazil on the labour reform implemented to promote collective bargaining, which seeks to comply with the obligations of the country in relation to the ILO.

We wish to indicate once again that this case is a clear example of what our regional group, GRULAC, has emphasized, as its selection does not reflect adequate geographical proportionality.

With reference to the comments of the Committee of Experts on the application of the Convention in Brazil, we regret that it was decided not to wait for the regular reporting cycle for the Government of Brazil on the application of the Convention, which was planned for this year. The Committee is therefore without appropriate and suitable information on the scope of the implementation of the legislative action by the Brazilian authorities, which is being examined by the judicial authorities in the country.

This Committee and the ILO as a whole should recognize the important efforts that are made by Governments and national institutions and organizations in the interpretation of standards with a view to taking into account national circumstances, capacities and the legal system.

We encourage the Government of Brazil and the social partners to maintain this firm commitment to the promotion of collective bargaining and to determine through tripartite social dialogue the necessary measures to maintain compliance with the principles set out in the Convention.

Employer member, Guatemala – This is the second time that this case has been discussed by the Committee, as recalled by previous speakers. Without judging the reasons for its inclusion on the list, what is certain is that it gives us the opportunity to examine in a little more detail the legislation adopted recently in Brazil, which is based on the principle of strengthening collective bargaining within the terms required by Article 4 of the Convention.

And this, based on the rights of workers set out in the Constitution, is the floor for negotiation, which offers a broad guarantee of protection in a country that implements in detail the labour rights enshrined at the constitutional level.

It appears to me to be very illustrative that we are discussing this case on the occasion of the ILO’s Centenary, and that this Centenary coincides with the change of era constituted by the fourth revolution. It is therefore a good occasion to analyse how standards have to be adapted to the current needs of the labour market. The scope of standards has to be understood as a function of this vision of the future.

It appears to me that in the reform implemented in Brazil there are good examples of how to achieve adaptation, without however abandoning fundamental labour guarantees. As one example, I refer to the content of section 444 of the Code respecting the articulation between collective bargaining and individual contracts of employment, which allows greater scope for action by the parties negotiating their conditions in a specific contract under certain conditions.

A sound understanding of this rule is based on comprehending the double guarantee for workers which, on the one hand, relates to those with certain qualifications and, on the other, guarantees a series of rights set out in the Constitution. It also offers an opportunity to adapt, in this context of so much change, the specialized services provided by the worker to the needs of the enterprise, which are also changing, and its environment.

This makes the need for legal certainty concerning the rights of workers compatible with the need to adapt to new forms of work, and particularly the stability of the worker, whose job could disappear in the absence of a rule allowing such adaptation.

We support the statement by the spokesperson of our group, in the sense that this provision is not related to the content of Article 4 of the Convention, and is not therefore in violation of it.

Government member, Chile – Our delegation endorses what was said by Argentina on behalf of a significant majority of the States of the group of Latin American and Caribbean countries (GRULAC). Moreover, as indicated by various countries from our region who preceded us, we share the concern regarding the application of the criteria for the selection of cases to be examined by the Committee and we therefore call for the process to be more transparent with the participation of all the constituents on a tripartite basis.

We share the concern that there has not been adequate recognition of the efforts made by the Government of Brazil. Moreover, if the country had been allowed sufficient time to be able to share relevant information with this Committee, the case might not be under examination by this body. We are also in solidarity with the other countries in our region which, despite the efforts made in accordance with their national situation, have also been included in the shortlist.

We encourage the Committee to ensure that the measures to be proposed are constructive and incorporate social dialogue as a central element so that progress can be made on the various challenges that arise out of the future of work.

Employer member, Honduras – There is no basis whatsoever to justify Brazil being called before the Committee, as the labour reform introduced though Act No. 13467 of 2017 is not in violation of any international labour standards or the labour rights guaranteed by the Constitution of Brazil. On the contrary, it reinforces the objective of the legal tool of collective bargaining, by ensuring that collective instruments can be concluded taking into account current working and production arrangements, without the interference of the State.

The new Act reinforces the principles of the rule of law by giving guarantees of legal security to the social partners which make use of collective bargaining as a tool to preserve the autonomy of the parties, giving priority to what is negotiated over the law.

It appears to be necessary to reiterate with great force what has already been said in this room: Article 4 of the Convention does not establish any absolute requirement that the outcome of collective bargaining must be conditions that are more favourable than those set out in law. In practice, the Convention provides that countries shall take measures to adapt collective bargaining to national conditions, which is precisely what Brazil has done.

What is of concern is that the Committee of Experts can consider collective bargaining to be valid only if it results in more favourable terms and conditions of employment than those set out in law, as this is a change in the rules of the game established by the Convention and an action that is in violation of the very principles of the ILO.

There is therefore no reason for the Committee to be examining the case of Brazil once again.

Worker member, Uruguay – I first wish to express the deepest solidarity of the trade union movement in Uruguay, our Inter-Union Assembly of Workers – Workers’ National Convention (PIT-CNT), with the women and men workers of Brazil. Workers are not guided by any short-term political considerations, as peoples, with their true knowledge and understanding, orient governments on the basis of their various political trajectories. What does guide workers is not only the technical requirement to comply with international conventions, but also the political necessity, although not party political, to advance the rights of workers and peoples in compliance with the law that is in force.

From our viewpoint, the Convention is an integrated whole, otherwise it would not be possible to explain how it simultaneously in Article 1 establishes freedom of association and in Article 4 it establishes the right to collective bargaining. They are two sides of the same coin.

Collective bargaining in this society is not bargaining between equals, and although it sounds romantic to say that work is not a commodity, we would not be able to explain the functioning of society if we do not take into account the manner in which the labour market operates. Strictly dispossessed of the means of production, we workers are obliged to sell our capacity to work, the force of our work, in exchange for a wage, and we sell it to whoever possesses the economic power and the capital means of production to contract us. The labour market happens every day.

Factors outside collective bargaining have a daily influence on the wage conditions and hours that workers must work. For example, the phenomenon of unemployment: if unemployment is higher, we workers have to bargain lower.

We are radically opposed to this labour reform because it effectively adds an element of competitivity to the bottom, it includes elements of blackmail against the weakest party to the labour relationship. By introducing the concept that collective agreements can be below the level of the law, it adds an element of even greater blackmail by permitting the individualization of settlements by individual works below the level of the collective agreement.

A union is a free and voluntary union of workers for the defence of their interests. The union is dissolved through the individualization of collective bargaining and the submission of workers to significant processes of deregulation.

From our perspective, it is therefore correct for this Committee to analyse and go further into the manner in which Brazil is complying with ILO standards so as to ensure that so-called social peace is not the peace of the entombed.

Government member, Romania – I am speaking on behalf of the European Union and its 28 Member States. The EFTA country Norway, Member of the European Economic Area, aligns itself with this statement. We do not wish to comment on the case we are now discussing. Yet, we feel compelled to raise points of fundamental nature in relation to some comments made since the beginning of this Committee on the supervisory system itself. We would like to recall that international labour standards provide the legal framework for the Decent Work Agenda. These international labour standards are backed by a supervisory system and by the ILO’s technical cooperation on the ground, which supports application in law and practice. The European Union and its Member States support the ILO’s standards and the supervisory mechanisms and will stand firm against any attempt to weaken or undermine the system. Adopting international norms without having a robust and independent supervisory system to oversee their implementation would not only be inefficient, but worrying. Indeed, we should not doubt that the supervisory system is critical to ensure credibility of the Organization’s work as a whole. Therefore, we call on all constituents to maintain a constructive stand and abide by the rules of these mechanisms.

Government representative – Brazil aligns itself with the statement made by Argentina on behalf of GRULAC and we thank all Governments and social partners who have joined us in our call for comprehensive reform of the supervisory system, both at this Committee, and elsewhere during this Conference. We have presented concrete facts and evidence that Brazil is in full compliance with Convention No. 98, as well as other ILO Conventions. Moreover, we have indicated that the Committee of Experts acted on flawed information retrieved by the accusers from dubious, partial studies in newspaper articles. This is in direct conflict with modern public policy analysis and international comparative law studies. Our delegation will forward FIPE studies on collective bargaining and the mentioned studies by the World Bank, OECD and IMF. I pay my greatest respect for the Workers that have taken the floor, and especially to the Worker spokesperson, Mr Mark Leemans, and Mr Lisboa, representative of the Brazilian workers. I must stress, though, that we should focus on the issues at stake in the present session. The labour reform is an important tool to reduce informality, provide legal certainty, and encourage investment. The labour reform did not, however, touch in labour rights in thus in the cost of labour in Brazil. And as we say in Portuguese, “jobs are not created by decree”. Job creation is the factor of the overall economy, which is already weak after the deepest economic recession in our history. Having said that, since the labour reform in Brazil, more than 850,000 jobs in the formal sector have been created. According to official statistics, there were 38.7 million workers in the formal sector in April 2019, versus 37.9 million two years before. In comparison, in the two years before the modernization of the labour legislation, more than 1.6 million formal jobs were lost. The statistics from the National Households Sample Survey (PNAD) confirms 3 million workers more in the first quarter of 2019 when compared to the same period of 2017. Moreover, it does not present any loss in terms of workers’ real wage. Accusations of precarization of the labour market are unfounded and not supported by evidence. New forms of contracts respond to a negligible number of contracts. For instance, the intermittent work responds for 0.16 per cent of the overall formal contracts. On the same token, official data show that the share of temporary contracts is less than 1 per cent of the overall formal contracts. There is still a lot to be done, and the economy is still very weak, but we are on the right path. With regards to the relationship between labour law and collective agreement, article 611-A of Act No. 13467, the Committee of Experts states that the hypothetical possibility by means of collective bargaining of derogations which could reduce rights and protection afforded by the labour legislation to workers, would discourage collective bargaining and would therefore be contrary to the objectives of the Convention. This statement is only a presumption lacking evidence support. No confirmation of derogation or harmful collective agreement has been presented in the last three years since the Committee started accusing Brazil. A mild reduction in the number of collective agreements is linked to the overall weak state of the Brazilian economy and has been matched by more multifaceted negotiations to the benefit of employees and employers alike. These findings are supported by solid evidence from recent studies from independent research institutions and international organizations, once again, like the World Bank. The labour reform is the result of years of discussion in the Brazilian society, followed by prior consultation with the central unions and hundreds of interactions within the Brazilian Parliament, the same institutions that ratified all International Labour Organization (ILO) Conventions.

On the prevalence of collective accords over general conditions of collective agreements, the purpose of article 620, is to allow for collective accords, which are much closer to the day to day of the workers, at the company level. Thus, this actual reality can be better translated by means of the collective accord, giving more density to the negotiated clauses.

On the relationship between individual contracts and collective agreements, Article 444, it should be recalled that Article 4 of the Convention does not refer to individual contracts of employment. Additionally, the possibilities established in article 444, (not 442, as wrongly reported in a previous report) of the amended labour legislation, is only applicable to a small portion of the Brazilian population, that is 0.25 per cent of the population of the very top layer of income with a higher level degree, who are generally employed in positions of executive management.

With regard to Provisional Measure No. 873, the provision is actually very simple, it reaffirms the union contributions depend on prior written and individual authorization of the employee or company, so that the employee alone has the choice of financing the union. I would like to recall that prior to the labour reform, union contributions were obligatory, so much so, that in Portuguese, it is called a union tax, not a union contribution.

Since the new law entered into force, some unions circumvented the law imposing obligatory contributions by means of general assemblies and doubtful representation, which approved collective authorization. Employees were harmed in their freedom of association rights, so that the provisional measure was necessary to enforce the labour reform and secure Parliament’s will.

In conclusion, there is no reason whatsoever to assume, as suggested by the Committee of Experts, that the new labour legislation in Brazil would discourage collective bargaining. Workers retain ability, an option in a voluntary negotiation to preferred legal provisions whenever they are deemed more favourable than the terms proposed by the other party.

The examination of the Brazilian case was in breach of the most basic principles of due process. A system allowing for this to happen, with no effective checks and balances, fails the purposes and objectives of the ILO.

Brazil rejects any attacks on its institutions – over the past two years Brazil has faced political crisis and an economic recession. We have implemented important economic and labour reforms enacted by legislation and promoted positive change. Democracy is alive, civil society is vibrant, political debate is in full force, the rule of law is in place and strong, and the judiciary remains fully independent. Brazil will keep investing in economic reforms to create more quality jobs, revamping our labour intermediation mechanisms to lift people out of unemployment as early as possible. Digital services are being offered to companies and workers alike, reducing bureaucracy and making way to the creation of jobs.

As a mid-income and ageing country, we all know that wage increases and social justice will only accrue from productivity gains. We invite the workers and the Worker representatives to contribute in that agenda, fighting informality, lifting more people from poverty, and building the future of work in Brazil.

Worker members – We can only observe with deep concern the disastrous impact of the amendments introduced by Act No. 13467 in 2017 and the failure of the Government of Brazil to uphold the fundamental principles of free and voluntary collective bargaining and of the binding nature of collective agreements concluded, which are enshrined in the Convention.

Under the amended provisions of the Consolidation of Labour Laws, the hierarchy of norms has been reversed and in less than two years, industrial relations in Brazil have been totally dismantled. With these regressive changes, the Consolidation of Labour Laws no longer serves its purpose of a safety net for Brazilian workers and the number of collective bargaining agreements is dwindling. Workers have been stripped of all protections afforded by the law or by more favourable collective agreements and, contrary to the Government’s argumentation, they are left worse off.

After years of social progress and inclusive laws and policies that have lifted millions of people out of poverty, Brazilians are slipping back into poverty and unemployment, while inequalities are growing. In a country where unemployment rates are increasing dramatically and where more than 50 million persons, almost 25 per cent of the total population, live with less than US$5.50, we deplore the total disregard of the Government of Brazil for its people.

The Government insists on fostering a system which violates the principles, objectives and provisions of the Convention and which gravely undermines the foundations of collective bargaining and industrial relations in Brazil. We strongly urge the Government of Brazil to stay true to its commitment as a member State of the ILO, therefore bound by its Constitution, and its obligations under the Convention.

We call for genuine and meaningful consultations with the social partners and without further delay and a complete revision of the Consolidation of Labour Laws in order to bring its provisions into full conformity with the Convention. We cannot stress enough the importance of restoring tripartite social dialogue and consultations in Brazil and call on the Government to take immediate and concrete steps to this end.

Furthermore, we call on the Government to address without delay the shortcomings and legislative gaps highlighted by the Committee of Experts which concern the following points:

- adequate protection against anti-union discrimination;

- compulsory arbitration in the context of the requirement to promote free and voluntary collective bargaining;

- the right to collective bargaining in the public sector; and

- the subjection of collective agreements to financial and economic policy.

This case requires serious consideration by this Committee and by the ILO as a whole. We fear that the regressive labour reforms in Brazil might be taken as a model by other governments of the world, and as this case shows us, this would be catastrophic.

Finally, we heard a number of speakers from both the Employer and Government benches raising the following issues: the interpretation of Article 4 of the Convention by the Committee of Experts; the independence and impartiality of the Committee of Experts; and the selection of individual cases for the examination by this Committee. We disagree with the expressed statements. We consider that it is not appropriate to address these questions in the discussion of an individual case. The discussion of an individual case has the purpose of examining substantive issues related to the application of ILO Conventions and not to pass judgement or suggest changes to the ILO supervisory system and its work. There are well-determined procedures to do so if needed. Comments that address issues that do not concern the substance of the case are irrelevant and are purely deflecting from the serious issues before us. Therefore we will respond to the expressed statements at a more appropriate time. Meanwhile we thank the European Union for its constructive comments supportive of the ILO supervisory system. Given the seriousness of the issues, we call on the Committee to include Brazil in a special paragraph.

Employer members – We have listened carefully to each of the interventions in this case. We particularly welcome the presence of the Deputy Minister, the Ambassador of Brazil and their teams in the room, as well as the full, clear and detailed information that has been shared with the Committee.

Before examining the matters raised by the Committee of Experts, I wish to react to what was said by the spokesperson of the Workers. In our understanding, it is indeed the mandate of this Committee and it is within the scope of this Committee to refer to the report of the Committee of Experts and its observations. If that were not the case, what would be the purpose of the public debate that is held in this Organization and this room. We therefore wish to make it clear that for us this is the place and we continue to state that we reject the views set out in its report on the aspects that we have already noted.

Having examined the issues raised by the Committee of Experts, and our rejection of them, and taking into account the intervention of the Government and the subsequent discussion, in the view of the Employers’ group it is clear that: first, the modifications made to sections 611-A and 611-B significantly extend the possibility of, and therefore encourage and promote the utilization of collective bargaining; second, in the view of the Employers, the changes made to section 444 broaden the possibility of the individual negotiation of contracts of employment by workers with higher education and incomes, without limiting their protection under the law; and, third, in the opinion of the Employers, the changes made to section 620 also broaden the scope of collective labour accords and are therefore in compliance with Article 4 of the Convention, as they also promote collective bargaining at the level of one or more enterprises, without restricting collective bargaining at higher levels.

Finally, it is clear that the labour reform, in the view of the Employers, was the result of a broad and exhaustive process of social dialogue.

We wish to recall that social dialogue, which must be in good faith, fruitful, productive and above the bodies that engage in it, but it cannot always result in consensus in the exchange of ideas, as on the contrary that would signify a veto on its outcome. It is therefore the responsibility of governments, in the final analysis, to legislate and to assume their responsibilities as governors issuing legislation in accordance with international labour Conventions, as has been done in the present case in our view.

For all of these reasons, this Committee can conclude once again, as it did in 2018, that the labour legislation in Brazil, and particularly Act No. 13467, is in compliance with the provisions of the Convention ratified by Brazil on 18 November 1952.

In that light, the Employers’ group rejects the inclusion of this case in a special paragraph.

We therefore encourage the Government of Brazil to draw up in consultation with the most representative employers’ and workers’ organizations and to submit a report to the Committee of Experts in accordance with the corresponding regular reporting cycle.

Conclusions of the Committee

The Committee took note of the information provided by the Government representative and the discussion that followed.

Taking into account the discussion that followed, the Committee requests the Government to:

- continue to examine, in cooperation and consultation with the most representative employers’ and workers’ organizations, the impact of the reforms and to decide if appropriate adaptations are needed;

- prepare, in consultation with the most representative employers’ and workers’ organizations, a report to be submitted to the Committee of Experts in accordance with the regular reporting cycle.

Government representative – Thank you for giving Brazil the floor to speak, after the conclusions pertaining to Brazil have been adopted. Once again, in concrete terms, we have witnessed how urgently and thoroughly the supervisory system needs to be reformed. Under the very roof of this tripartite Organization, two parties of the so-called International Labour Organization tripartism, just made public their conclusions on the debate we had last Saturday, without the participation of the third party concerned. No other system, supervisory or otherwise, of the UN family of international organizations is so out of touch with the reality of this one. Due process of law has yet to be observed.

Throughout all chapters of this supervisory system, only two of the three parties take the decisions. In the house of tripartism, only two parties list, expose and conclude. Brazil aligns itself with all Governments and social partners who have joined us in our call for a comprehensive reform of the supervisory system, both at the Committee on the Application of Standards and elsewhere during this Conference.

This supervisory system is not democratic, transparent, impartial or inclusive. It has all the ingredients of a robust system; what it does lack is due process of law and right of defence. This system is too important to be left unguarded against political buy-ins and lack of transparency. We have confidence that the ILO constituency can seek consensus towards building an effective, truly tripartite, and universal mechanism for standards supervision.

We have presented concrete facts and evidence that Brazil was in full compliance with Convention No. 98. Based on economic research institutions, like the University of São Paolo and international organizations, such as the World Bank, the Organisation for Economic Co-operation and Development (OECD), and the International Monetary Fund (IMF). Brazil’s’ position was formally supported by more than 30 governments and employers’ organizations, for which we are very grateful. Less than half of that supported all the points of view.

These are strong words, because strong words are needed to be voiced against all sorts of injustice. A Committee of Experts that, despite the eminence of their components, does not offer solid technical work, a Committee that operates as a tribunal, receives denunciations as a tribunal, but does not investigate cases and view cases as a tribunal, arguing that solely because there are no formal punishments, a strong case is not required to be made.

This supervisory system does not speak in favour of multilateralism when the values and principles which are the very pillars of the multilateral system are precisely those that are missing here today, and every day, in the ILO supervisory system. Brazil has engaged in good faith and constructive spirit with the ILO; however, there is a limit to our ability or willingness to continue in that engagement if a dialogue cannot be established and responses are biased and unfounded. Should this undesirable situation remain unchanged, Brazil reserves the right to consider all available options. Having said that, as we see, the position of the CAS reflects the views of the negotiations between employers and employees and does not reflect the ILO’s vision.

Brazil would like to thank the Chair for the wise and serene conducting of the proceedings. We also recognize the Committee’s ability to take into account information provided by Brazil and moderate its conclusions. Certainly, an evolution with regards to the last three years. Brazil will remain committed and compliant with the Organization’s Conventions, with the creation of more jobs, to lifelong learning strategies and to addressing the challenges of the future of work.

Individual Case (CAS) - Discussion: 2018, Publication: 107th ILC session (2018)



The Government has provided the following written information.

In its report to the 107th Session (May–June) of the International Labour Convention, issued last February, the Committee of Experts on the Application of Conventions and Recommendations (CEACR), commenting out of the regular reporting cycle, referred to articles 611-A (prevalence of collective bargaining over legislation), 442-B (self-employment) and 444, single paragraph (relationship between individual contracts and collective agreements) of the Labour Code as amended by Law 13467 (2017).

Labour reform in Brazil: Context and objectives

– The previous Brazilian labour legislation, which dated back to 1943, went through some changes over the years, but needed to be updated in order to address requirements of the economy of the twenty-first century.

– The intervention of labour courts cancelling clauses agreed in collective bargaining led to frequent complaints by trade unions. In this context, ABC metalworkers’ unions, which are the cradle of the Brazilian trade union movement, proposed in 2011 the adoption of the Collective Bargaining Agreement with Specific Purpose (ACE), aiming at the prevalence of the collective bargaining over the law, having as the only limitation the rights enshrined in article 7 of the Federal Constitution, precisely the aspect that the labour reform has implemented.

– Labour reform (Law 13467; entry into force in November 2017) stems from many years of discussions regarding challenges of the Brazilian labour market, shortcomings of the labour legislation and concerns about the functioning of the labour justice system.

– Such issues became particularly pressing in a context of deep economic recession: In 2016, unemployment rose to 11.3 per cent – the highest since modern records commenced in 1992 – an increase of 82 per cent since 2012. Other relevant factors impacting the labour market include: 44 per cent of participation of informal jobs in the total amount of jobs, while 60 per cent among unskilled workers; high degree of judicialization; lowest labour productivity since the seventies (near 1 per cent per year); high turnover of labour; underuse of collective bargaining and lack of legal certainty for its implementation.

– Inclusive, comprehensive and extensive consultation with social partners is a key feature of labour reform in Brazil. The proposal of modernizing labour legislation was elaborated after a series of debates organized by the Ministry of Labour and by the Chief of Staff of the Presidency in December 2016, with the participation of representatives of trade unions and employers.

– Subsequently, during the legislative process in 2017, 17 public hearings, seven regional seminars and over 40 meetings with interested stakeholders took place in Parliament and in different states, leading to the approval of the Bill by a significant majority at the Chamber of Representatives and at the Federal Senate.

– Labour reform seeks to provide more flexibility, increased labour productivity, legal certainty and rationality to both labour market and legal system, with enhanced safeguards against breaches of the law and full respect of fundamental principles and rights at work.

– A central aspect of labour reform in Brazil is the strengthening of Conventions and collective agreements between unions and employers, aiming at the possibility for each category to negotiate, collectively, the best terms to reconcile employment quality and increase of productivity, without affecting the rights of workers.

CEACR – Mandate and reporting cycles

– As consistently stated in CEACR reports, the mandate of the Committee refers to the application of Conventions “in law and practice” through an impartial analysis.

– The assessment of the Brazilian case by the CEACR fails to meet that mandate, and minimal fairness requirements, on many accounts.

– The CEACR offered no explanation for the exceptional measure of breaking the cycle and prematurely commenting on the reform before the Government’s due report on the application of Convention No. 98; moreover, the wider context of Brazil’s reform has not been taken into account at all.

– Clearly, there has not been sufficient time for an evaluation of all relevant aspects of the implementation of the new Brazilian legislation. At the time the Committee met in November 2017, Law 13467 had entered into force a few days earlier.

– Additional time would have been required to allow for an adequate and balanced understanding of the effective legal framework, including high court decisions, and its impact on the labour market.

– Respecting regular reporting cycles would have facilitated a comprehensive evaluation, in 2019–20, of the reform’s application of Convention No. 98 principles. Brazil presented its last report on Convention No. 98 in 2016 and its subsequent reporting obligation would normally fall on 1 September 2019. The CEACR would thus publish comments in February 2020 and any possible CAS discussion would only take place at the 109th Session of the ILC (2020).

Relationship between Labour Law and Collective Agreements (Article 611-A of Law 13467)

– According to the experts, article 611-A, despite safeguards contained in article 611-B of the Labour Code, breaches “the general objective of Conventions Nos 98 and 154 and the Labour Relations (Public Service) Convention, 1978 (No. 151)”, which “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” [.].

– The analysis by the experts is seriously flawed by the complete absence of efforts to refer to the ordinary meaning of the text of the relevant Convention No. 98, as required in international law.

– In this respect, it should be stressed that nothing in the text of Article 4 of Convention No. 98 or any other agreed language by tripartite bodies indicates that collective bargaining is limited to more favourable conditions than “those already established by the law”: Article 4: “Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements.”

– On the contrary, the spirit of Article 4 and the Convention as a whole, according to recommendations of the Committee on Freedom of Association, censors limitation of the scope of negotiations and invalidation of collective agreements’ by courts and executive authorities.

– In that same vein, the ILO Policy Guide on Collective Bargaining (2015) states: “The collective bargaining framework needs to give the negotiating parties full latitude to decide the subjects they wish to include on their bargaining agenda. Measures taken to restrict the scope of negotiable issues are generally considered by the ILO’s supervisory bodies to be incompatible with international labour standards and principles on the right to collective bargaining.”

– In addition, the first part of the text of Article 4 expressly relates measures to promote voluntary negotiations to “appropriate national conditions” – a term with both legal and practical connotations, requiring due considerations of the complexity of the situation on the ground before any conclusion is drawn (once again, the CEACR report is completely silent in an essential aspect for the correct interpretation of the relevant obligations under Convention No. 98).

– In this line of thought, it would be paramount to assess the context of the Brazilian reform and the wider framework of fundamental principles and rights at work enshrined in the Brazilian Constitution of 1988 (the breadth and detail of constitutional labour rights are unique features of our legal system). Relevant constitutional provisions, article 611-B of the new legislation (excluding about 30 fundamental workers’ rights from negotiation) and all legal remedies available in Brazil ensure thus a system of safeguards that ought to be considered in any thorough examination of the application of Convention No. 98 in law and practice (an examination that is completely absent in the CEACR report).

– In robust and well developed systems of labour rights, such as the Brazilian one, the Committee’s interpretation of Article 4 would amount to a severe, erroneous limitation of the scope of collective bargaining, against the text and the spirit of Convention No. 98.

– The reference to the “travaux préparatoires” of Convention No. 154 (of 1981) is another serious legal flaw in the analysis undertaken by CEACR. In no way would the “travaux” be an appropriate ground for restricting the outcome of collective bargaining:

(i) As a subsequent Convention, it cannot determine the meaning intended by the members who participated in the setting of Convention No. 98 (of 1949) nor those who later ratified it (Brazil ratified Convention No. 98 in 1952, 29 years before the adoption of Convention No. 154).

(ii) According to the Vienna Convention on the Law of Treaties recourse to the “travaux” consists in a supplementary form of interpretation, subordinate to the ordinary meaning, and to be used either to confirm the text of the very treaty under interpretation (i.e. Convention No. 154, and not another one, let alone a pre-existent one, such as Convention No. 98) or in cases of ambiguity and obscurity of that text.

(iii) If, for the sake of argument, one were to consider Convention No. 154, one should give precedence to the text of Article 9 of that instrument, rather than its “travaux préparatoires”: “This Convention does not revise any existing Convention or Recommendation.”

(iv) Even when considering such “travaux” one should read its full text (Report IV(1) of the 67th Session of the ILC – 1981), particularly paragraphs 58 and 65. One shall note that the discussion was more nuanced: a prohibition of outcomes that could derogate from provisions of the law was not even considered and, in any case, no party envisioned the specific legal clause contained in the Brazilian legislation.

Relationship between individual contracts and collective agreements (Article 444, single paragraph, Law 13467)

– The Committee also “recalls that legislative provisions which allow individual contracts of employment to contain clauses contrary to those contained in the applicable collective agreements (although it is always possible for individual contracts of employment to contain clauses that are more favourable to the workers) are contrary to the obligation to promote collective bargaining, as set out in Article 4 of the Convention”.

– It should be recalled that Article 4 of Convention No. 98 does not refer to individual contracts of employment.

– The possibility established in article 444 (not 442, as wrongly recorded at the report) of the amended labour legislation is only applicable to a small proportion of the Brazilian population (0.25 per cent) at the very top layer of income, and with a higher level degree, who are generally employed in positions of management.

Independent contractors (Article 442-B of Law 13467)

– The Committee also states that “the Convention applies to all workers, with the sole possible exception of the police and the armed forces (Article 5) and public servants engaged in the administration of the State (Article 6)”.

– The new text of article 442-B (not 444-B, as wrongly recorded at the report) simply clarifies the legal status of the independent contractor (“autônomo”, in Portuguese).

– Contrary to what the experts conclude, nothing in that provision contradicts Convention No. 98: if the contractor does not hold a subordinate position vis-à-vis his or her contracting party, he or she will not be deemed an employee. Moreover, article 511 has not been amended by the new legislation and thus independent contractors (“trabalhadores autônomos”, in Portuguese) can still be organized in trade unions.

Committee on the Application of Standards (CAS)

– According to the CEACR’s own comments, Brazil has until 1 September 2018, to submit its full report on the application of Convention No. 98, so as to respond to the social partners’ and the Committee’s observations.

– As we have advocated, the limited time and resources of CAS should be devoted to serious cases. Thus, Brazil’s inclusion on the “short list” of the CAS amounts to passing judgment on the Brazilian situation before hearing the Government, in breach of the most basic standards of due process.

– In comparative analysis of other cases and comparable situations, the CEACR has not used incisive language in relation to Brazil. While expressions such as “deep concern”, “deep regret”, “urges” and “firmly urges [various courses of action]”, “persistence and gravity of allegations” are relatively widespread in the report, none of them have been applied to the Brazilian case. These expressions indicate a clear sense of seriousness and/or urgency, which should be duly taken into consideration by the social partners in drafting the long and short lists.

Conclusions

– By failing to take into account the application of Conventions in practice and in the national context, the observations of the experts, at best, are premature, and contradict the Committee’s own mandate. In addition, they propose a legally flawed interpretation of Convention No. 98 that departs from the ordinary meaning of the text of the instrument.

– It also departs from consistent recommendations of the Committee on Freedom of Association and technical texts of the ILO itself.

– There is no reason whatsoever to assume, as suggested by the experts, that the new labour legislation in Brazil would discourage collective bargaining. Workers retain the ability and option, in a voluntary negotiation, to prefer legal provisions wherever they are deemed more favourable than the terms proposed by the other party.

– Conversely, revising relevant articles of the Labour Code with the modifications introduced by the labour reform (or law 13467/2017), as the Committee suggests, would discourage negotiations, as it would allow the judiciary to review and annul collective agreements, as has happened recently, and significantly reduce the scope of what can be negotiated, which would have negative effects on the labour market.

– In fact, labour reform has consecrated a formula that reconciles free and voluntary negotiations with the protection of workers’ rights (many of them enshrined in our Constitution). It is worth noting that the very same principle (prevalence of negotiation over legislation), as introduced in the Labour Code, had also been a claim by metalworkers’ unions in the state of São Paulo in 2011, in proposing the Collective Bargaining Agreement with Specific Purpose (ACE).

– By providing legal certainty and reliability to collective bargaining, without unprotecting workers, the labour reform effectively abides by and promotes Convention No. 98, in line with our international obligations.

– It is important to emphasize that in no way are workers unprotected under Brazilian new legislation. Labour unions can freely negotiate the issues that interest them and still remain covered by the provisions of the Labour Code in all other issues not negotiated or agreed to in collective bargaining. Brazil’s legal protection system and constitutional guarantees ensure a high level of protection in any scenario. Besides, the collective negotiation process itself ensures that the workers’ best interest is reflected on the final agreements: first, by the bargaining power of its union, which must be representative; by the legal requirement that the collective agreement be approved by a general assembly of the category and, finally, by the system of judicial control exercised by the Labour Prosecutor’s Office and the Labour Courts.

– Brazil has shown continuous willingness to foster social dialogue throughout and beyond the process leading to the adoption of the labour reform. In June 2017, the Ministry of Labour created the National Labour Council to discuss all pressing issues of the world of work, and from October onwards the standing orders of the Council were agreed to by tripartite constituency, rendering them fully operational.

– Finally, it is important to note that since the entry into force of the Brazilian labour reform, there have been a number of legal actions filed in the Supreme Court claiming the unconstitutionality of the new provisions, but none of them are related to the issues brought to the attention of the CEACR. Instead, most of them had to do with the end of trade union’s compulsory contribution.

– Brazil is ready to continue in conversation with social partners and civil society on all aspects of our legislation.

In addition, before the Committee, a Government representative, Minister of Labour, regretted that the case was being discussed for political considerations. That could have a negative impact on the quality of the system, and Brazil had always supported the strengthening of the ILO supervisory system. Brazil was a founding member of the ILO and had ratified 97 Conventions, 80 of which were in force. It was one of the States most exposed to the supervisory system. Its performance in the context of the ILO supervisory mechanisms was exemplary. Each year, the Government submitted all reports due, demonstrating the full implementation of the instruments ratified. In addition, the Tripartite Commission on International Relations, where ILO standards and their application were widely discussed, in full implementation of the social dialogue promoted by the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), met periodically. With all those credentials, and with no reason to justify the urgency of such an examination, it was difficult to understand why the Committee of Experts, not fulfilling its mandate to examine the application of ILO instruments in law and in practice, did not wait for the regular reporting cycle to examine Act No. 13.467/17. Concerning some important aspects, that law was examined prematurely a few days after its entry into force. The analysis was conducted with such excessive speed that the provisions of the legislation examined were swapped. Because the country had committed to the ILO and its system of standards supervision, the biased, partial and non-technical treatment of the case caused great discomfort. The ILO was captured in a political game that combined partisan motivations and corporatist interests. Workers were not impaired by Brazil’s modernization, but only those unions dependent on the State and lacking real commitment to workers. Out of the more than two dozen of “Direct Actions of Unconstitutionality” (judicial review proceedings) proposed in the Federal Supreme Court against several points of the reform, none dealt with the points analysed by the Committee of Experts. Two-thirds of them dealt with the end of the union tax, which was a very controversial measure not questioned by the Brazilian Unions in their submissions to the Committee of Experts. That measure brought Brazil closer to the practice of the vast majority of the countries in the world and promoted the autonomy and independence of trade unions, established in the Convention. He affirmed that questioning this measure would expose the fragility of the whole case raised by union confederations (centrais sindicais). The reform abolished a provision which was created in the 1940s by a government that wanted to keep trade unions under control. The Committee of Experts stated that the possibility, by means of collective bargaining, of derogations to the rights and protections afforded to workers by the labour legislation would discourage collective bargaining and would therefore be contrary to the objectives of the Convention. He regretted that the Committee of Experts seemed to have endorsed the political thesis that the reform would lead to precarious work. However, that could be possible only if trade unions would voluntarily agree to the terms of an agreement less favourable than the existing legal provisions; if labour inspection did not function; if labour judicial bodies did not exist; and if the Federal Constitution was torn apart. The Committee of Experts omitted to consider that trade unions were not obliged to agree to conditions less favourable than those defined by law. Negotiation without the possibility of reciprocal concessions, only conferring advantages to one party, would not offer the other party any incentive to negotiate. It was a basic principle of any negotiation to have concessions from each side. In a country like Brazil, with extremely broad and detailed labour legislation, restricting collective bargaining only to points not covered by legislation or above legal provisions would reduce their range and scope of application in an irrational way. That would be contrary to the Convention as it established that governments had to promote negotiations as comprehensively as possible, as recognized in the ILO Handbook on the subject and reaffirmed repeatedly in recurrent recommendations of the Committee on Freedom of Association. The Committee of Experts did not refer to a broad set of labour rights that had been granted constitutional protection in the Brazilian legal system and could not be revoked by any reform, not even by a constitutional reform. Those rights were included in Act No. 13.467/2017. Eighty ILO Conventions in force were part of the legal system in Brazil and were not affected by the reform. In the General Survey of 2018, the Committee of Experts recognized that constitutional protection guaranteed to those rights in Brazil was an example to emulate. Those rights were not subject to derogation and had been expressly excluded from the possibility of any negotiation. That proved that the aim of the reform was not to revoke any right but, by consolidating them, to guarantee as much space as possible for collective bargaining, thus implementing the Convention more effectively. The Committee neglected to mention that, in the past, it was common that the judiciary in Brazil would make void labour clauses of collective agreements or entire agreements, without any objective legal reasoning. That created legal uncertainty and discouraged collective bargaining. Collective bargaining could be effectively fostered, as advocated by the ILO, only by granting force of law to collective bargaining and protecting the autonomy of the parties, through the primacy of the negotiated over the legislated. It was surprising that union leaders questioned that point, since the law incorporated a proposal originally made in 2011 by one of the largest and strongest unions in the country, the ABC metalworkers union of São Paolo. It was alleged that the primacy of the negotiated over the legislated opened the possibility for unions to negotiate to the disadvantage of the workers. However, that was not the experience of collective bargaining in Brazil. Studies showed that in 2016, the year of a strong economic crisis, in more than half of the collective agreements, unions negotiated wage increases above inflation, while the vast majority succeeded in securing job preservation at a time when layoffs were high. Trade unions in Brazil had already integrated the provisions contained in the new legislation into their collective agreements. Collective bargaining had not been discouraged with the new legislation. He stated that when practical analysis belied the theories that best served political interests, some deemed best to ignore practice and cling to theories. In addition to the constitutional guarantees, workers were protected by the system of registration of collective agreements by the Ministry of Labour, which required proof that the agreement was approved by a representative assembly of the category; by the labour inspection system, composed of professionals able to identify and administratively combat fraud and violations; by the labour prosecutor’s office, a unique institution that could bring a lawsuit when it perceived non-compliance with legal precepts, as it had done; and by the labour judicial system, with specialized professionals who, in 2017, before the new law entered into force, received more than 4 million new lawsuits. The Committee of Experts did not mention that in Brazil there were 17,509 registered union entities and many had done very little for their constituency. It was not difficult to understand why there were so many, differently from the rest of the world. Since it benefited from a mandatory tax, in order to exist a union did not have to be representative or defend the workers’ interests. The income guaranteed by the State, which in 2017 reached more than 4 billion reais (or US$1.25 billion), provided a sufficient reason for its existence, in a clear distortion of the values that should guide and justify workers’ organizations. Labour reform ended the state of affairs while unions would have to work much more and workers and employers as a whole would benefit. For that reason, the same reform that favoured collective bargaining, also promoted union independence, which was at the heart of the Convention.

It was clear that there were no technical reasons why the case of Brazil should be examined by the Committee at this time and it was regrettable that the ILO had been politically manipulated. This was possible through political bargaining kept in secret rather than on technical merits. Hasty and technically flawed analyses could be sufficient to expose a country, if political interests so required, and force it to provide clarification to the Committee. In an election year, the process was described as inquisitorial in the Brazilian press, regardless of the country’s commitment to fulfilling its obligations. Such a system did not meet the demands and challenges of the world of work, nor the expectations placed in the ILO. With the ILO approaching its first centenary, the time had come to reform the system so as to make it more consistent with the world of work and with democratic and inclusive principles, such as the due process of law, which was required of all agencies of the UN system. For many years, GRULAC had denounced this state of affairs and had been solemnly ignored. The time had come to start listening, because otherwise the system of standards supervision would run the grave risk of losing credibility, and thereby become irrelevant. In a tripartite organization, it was astonishing that there was nothing tripartite in the regular system of standards supervision. Unlike other agencies, governments had no role in the selection of the Committee of Experts’ members or in the definition of working methods. Unlike other agencies, there was no real universal method of supervision. It was always the same group of countries that allegedly failed to respect commitments. That situation privileged selectivity against transparency and universality. He reiterated the lack of consensus in the current working methods of the Committee. If the level of compliance and support for ILO instruments was to be increased, the perspectives of governments had to be included in selecting the lists of cases, to meet technical criteria; in the drafting of conclusions, to be effectively implemented; and in working methods in general, to be honoured. The composition of the Committee of Experts had to be revised to reflect the diversity and technical quality expected. The criteria for selecting the lists of cases to examine had to be re-examined in order to ensure that decisions were exclusively of a technical nature. Brazil had a keen interest in continuing the debate with the social actors in order to improve its labour legislation and it was prepared to do so. He expressed its continuous commitment to the obligations undertaken with the ILO and reiterated that the modernization of the legislation did not violate any Convention. On the contrary, Act No. 13.467/2017 promoted and strengthened collective bargaining, giving full effect to the Convention. He urged a profound change in the supervisory system before it was too late and expressed the readiness of his Government to participate in good faith in a collective effort to improve the supervisory system for all.

The Worker members noted that it was the first time in 20 years that the Committee was discussing the application of the Convention in Brazil. Noting that the country had been on a steady path towards social progress and a global leader in this regard, they were therefore deeply disappointed by the regressive legislative steps undertaken, which would have the effect of dismantling collective bargaining rights and the strong industrial relations tradition built over the past two decades. In 2016, Brazilian trade unions had already transmitted information to the Committee of Experts to report the severe shortcomings and flaws of the bills which were before Congress at that time. Considering 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, the Committee of Experts had requested the Government to take these comments into account during the examination of the bills. Even if it had not discussed by the Conference Committee in 2017, Brazil had been listed on the preliminary list of cases. Despite these warning signals, the Government had adopted the problematic amendments on 13 July 2017, without taking into account the comments of the Committee of Experts. Both social partners had provided their views on the legislative reform, which was passed before the 2017 session of the Committee of Experts. The Worker members therefore did not agree that this case, which had a history within the supervisory system, had been dealt with prematurely by the Committee of Experts. They also strongly disagreed with the criticism related to the treatment of the case outside of the regular reporting cycle. Recalling that the criteria for breaking the reporting cycle were reproduced every year in the General Report of the Committee of Experts, they considered that the case of Brazil met the criteria that observations referring to legislative proposals or draft laws may be examined by that Committee even in the absence of a reply from the Government. The development of a mechanism to break the reporting cycle enjoyed tripartite support. It had been introduced as a safeguard when the Governing Body had extended the reporting cycle for certain types of Conventions to ensure that effective supervision of the application of ratified Conventions was maintained. They would never accept that an individual case would be used to attack the well-recognized and supported impartiality and independence of the Committee of Experts. The Worker members were deeply concerned that the far-reaching legislative amendments, which were introduced hastily and without prior genuine and meaningful consultation, would effectively result in the dismantling of the collective bargaining framework in Brazil and undermine the rights of workers. With reference to the Government’s statement that the legislation had been elaborated after a series of debates organized by the Government in December 2016, with the participation of representatives of trade unions and employers, they wished to remind the Government that “debates” could not be a substitute for genuine and effective consultations and that the most representative trade unions were not part of these debates. Moreover, the draft Bill had only seven articles at that time, whereas the law, as enacted, was very extensive, with more than 100 articles. In addition, the Labour Relations Council, which was the official tripartite body where ILO matters were discussed, had not been convened after April 2016. When the new National Labour Council was created on 1 June 2017, the Bill had already been approved in the lower house.

They considered that the amendments ran counter to the objective and spirit of the Convention. New section 611A of the Consolidation of Labour Laws (CLT), which established as a general principle that collective agreements prevailed over the legislation and that collective agreements, negotiated by workplace delegations at the enterprise level, prevailed over collective agreements, made it possible through collective bargaining not to give effect to the protective provisions of the legislation. While Act No. 13.467/2017 contained a list of subjects in respect of which collective bargaining prevailed over the law, that list included many aspects of the employment relationship, such as working-time arrangements. Since that list was merely illustrative, it could be broadly extended by the parties. The sole limit to these deviations was a closed list of rights referred to in section 611B, which contained 30 rights, enshrined in article 7 of the Federal Constitution of Brazil. Moreover, section 611A specified that the absence of compensatory measures was not a reason for the clauses of collective agreements to be found void, even where they derogated from the rights set out in the law. The Worker members wished to recall that the overall aim of Article 4 of the Convention was the promotion of good faith collective bargaining with a view to reaching an agreement on terms and conditions of employment that were more favourable than those envisaged in law. By allowing for less favourable derogations in collective agreements on virtually all subjects of the employment relationship, the Government deprived workers of their fundamental right to collective bargaining and failed to ensure the effective realization of a minimum set of rights which would apply equally to all workers in Brazil. Moreover, new section 444 of the CLT, which stated that workers who had a higher education diploma and received a wage that was at least two times higher than the ceiling for benefits from the general social security scheme may agree to derogate from the provisions of the legislation and collective agreements in their individual contracts of employment, was not in conformity with Article 4 of the Convention and with the Collective Agreements Recommendation, 1951 (No. 91), which laid down the principle of the binding effects of collective agreements and their primacy over individual contracts of employment where the latter were less favourable. In addition, by expanding the definition of autonomous workers who did not enjoy the right to organize and bargain collectively to include workers who were engaged exclusively and permanently for an enterprise, new section 442B of the CLT diluted the collective representation of workers through misclassification. The Worker members were deeply concerned by the profound and broad-reaching changes implemented by the legislative reform which eroded collective bargaining rights previously guaranteed to workers. With reference to the Government’s argument that the reform had been necessary due to the overall context of economic recession, they noted that even though the number of collective agreements had decreased by 29 per cent since the adoption of the reform, the economic situation in the country had not improved. Unemployment and the informality rate had even risen. No country had ever achieved sustainable economic progress by depriving workers of their fundamental rights. Reiterating their deep concern with the retrograde practices in a country which used to be championing fundamental rights at work, they called on the Government to urgently take the necessary steps in order to reform the legislation and to bring it into line with the Convention before any further harm was inflicted on the workers of Brazil.

The Employer members expressed concern with the observation adopted by the Committee of Experts on the application of the Convention by Brazil. While recognizing the authority of the Committee of Experts to examine a situation outside of the regular reporting cycle, in exceptional cases, they were concerned with the exercise of this discretion in the present case. While one national trade union had criticized the labour reform, the national employers’ organization had sent information to express satisfaction at the modernization of the outdated labour relations system. Moreover, despite the fact that it had not received a response from the Government to the diverging opinions of the social partners, the Committee of Experts had adopted an observation, only a few days after the labour law reform had come into effect. In addition, 2017 had not been a reporting year on the Convention for Brazil, which was up to date with its reporting obligations. In view of the lack of information on the position of the Government, a direct request might have been the more appropriate first step in the examination of the situation. In view of the sensitivity of the case, they regretted that its discussion by the Conference Committee was based on incomplete information. The Committee was therefore not in a position to examine the case in a proper and balanced manner. Examining the case in the regular cycle would have allowed a comprehensive evaluation of the impact of the reforms on the application of the Convention, both in law and in practice. The Employer members had taken careful note of the Government’s statement. Additional information was necessary to fully understand the labour law reform.

The Employer members noted that the labour law reform established as a general principle that collective agreements prevailed over national legislation, except for the constitutional rights referred to in section 611B of the CLT. In that respect, the Committee of Experts had observed that the general objective of the Convention was to promote collective bargaining with a view to agreeing on terms and conditions of employment that were more favourable than those already established by law. The Employer members recalled the requirements of Article 4 of the Convention which provided that member States must take measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. In their view, there was no absolute requirement that the outcome of collective bargaining must be on terms and conditions that would be more favourable than those established by law. A mechanism that allowed for the prevailing effect of collective agreements promoted in law the principle of collective bargaining. It might create an incentive for additional voluntary collective bargaining. It was not yet possible to analyse the effect of the system in practice and therefore not possible to know at this stage whether this mechanism would undermine the principle of collective bargaining. In order to allow a complete examination of the conformity of the reform with the Convention, the Employer members encouraged the Government to provide information in its next report on the operation of sections 611A and 611B of the CLT, in law and in practice. The analysis must take into account the extensive rights of workers enshrined in the Constitution and referred to in section 611B which concerned 30 areas of protection, including the right to unemployment insurance, minimum wage, paid weekly rest and vacation, maternity and paternity leave, occupational safety and health and freedom of association. It was of concern that the full list of protected rights was not included in the observation adopted by the Committee of Experts. With respect to the issue of the relationship between individual contracts of employment and collective agreements, the Committee of Experts had noted that workers who had a higher education diploma and received a wage that was at least two times higher than the ceiling for benefits from the general social security would be able to derogate from the provisions of the legislation and collective agreements and accords in their individual contracts of employment. In that respect, the Employer members noted that it was not possible to have a full and informed discussion on the impact of such a provision in law and practice and to assess compliance with the Convention without further information from the Government and the social partners. In their view, the issue of the prevalence of individual contracts over the national legislation was not within the scope of application of the Convention. Finally, regarding the extension of the definition of autonomous workers and its effect on the exclusion of workers from trade union rights, they noted that it was not possible to have a full and informed discussion without appropriate information and requested the Government to send its comments on the observations from the trade unions for examination by the Committee of Experts.

The Worker member of Brazil, speaking on behalf of the Brazilian trade union associations, congratulated the Committee of Experts on the quality of its work, which had made it an unmistakable point of reference in discussions on labour relations. He maintained that the technical knowledge and impartiality of the Committee of Experts should not be called into question merely because their comments were unfavourable to a particular side. The function of the Committee of Experts was vital in guiding debates and creating the necessary balance within the Organization; as such, attacks on the Committee of Experts were tantamount to an attack on the Organization itself. The seriousness of the violations engendered by Act No. 13.467 was reflected in the stern comments of the Committee of Experts. The new legislation constituted the most serious attack on workers’ trade union rights in the entire history of Brazil. The discussion in the Conference Committee was not new, as in 2001 the Government had attempted to pass an act that would enable the rights provided in law to be restricted through collective bargaining. In 2002, in reply to a query from the CUT of Brazil, the International Labour Standards Department of the ILO had confirmed that making it possible to disregard the rights laid down in law through collective bargaining breached Conventions Nos 98 and 154. The process that had culminated in the adoption of the Labour Reform of July 2017 had been notable for the utter failure to consult either workers’ representatives or representatives of other sectors involved in the world of work, such as the National Association of Labour Judges, the Office of the Public Prosecutor for Labour Law or the Association of Labour Lawyers. The new Act furthered the general weakening of the whole system of worker protection, undermining freedom of association and the right of workers to use legal channels to present their claims and imposing a heavy financial burden on those who did so. In that regard, he condemned any practice intended to persecute labour magistrates who, in applying the new Act, had followed a different legal approach. On the pretext of modernizing labour relations, the new Act represented a return to a judicial position that had been superseded many years previously. That position was based on entirely free bargaining and assumed that the parties in labour relations enjoyed the same bargaining power. The backward step became obvious if one bore in mind that the Act allowed individual bargaining to derogate from the application of collective agreements, in violation of Article 4 of the Convention. Furthermore, on the grounds of tackling informal work, the new Act legalized various forms of precarious work and allowed pregnant women and breastfeeding mothers to work in unhealthy workplaces. The reform had not only failed to create the promised jobs, it had actually resulted in higher rates of unemployment. When the Act had come into force, the unemployment rate had stood at 12.2 per cent; by April 2018, however, according to data from the Official Institute of the Brazilian State (IBGE), it was 13.1 per cent, equivalent to 13.7 million people out of work. If that figure was combined with the number of potential workers who had stopped looking for work (7.8 million) and the number of people underemployed (6.2 million), it gave a total of 27.7 million Brazilians outside the labour market (24.7 per cent of the economically active population). The Government’s stance – that the new Act helped to promote collective bargaining – was far removed from reality. A study by the Economic Research Institute of the University of São Paulo had observed a fall of 34 per cent in the number of collective agreements signed in the first few months of 2018. Under the new Act, collective bargaining took precedence over legislation, including when better conditions were provided in law; an enterprise agreement took precedence over collective agreements, and individual agreements could exclude workers from the protection offered by existing agreements, in clear breach of the Convention. The reform had hit trade unions hard, in that it had put an end to the existing funding model without offering any alternative. Union assemblies were also prevented from approving rates for dues and contributions to maintain their activities, again in breach of the Convention. It was impossible to strengthen collective bargaining by weakening trade unions. He concluded by requesting the repeal of the new Act, given that it took away rights, attacked trade unions, promoted individual bargaining at the expense of collective bargaining, and distanced the country from the Decent Work Agenda.

The Employer member of Brazil said that there was no legal basis to justify calling Brazil to appear before the Committee to provide clarifications regarding collective bargaining. In failing to observe the regular reporting cycle established for examining the Convention, the Committee of Experts had prejudged the application of it, on the basis of a superficial, abstract analysis of the new Act which took no account of the results of its specific application without being based on any data, or facts, in the quick manner from the text of a recent legislation (applied since only six months). Here the discussion was not technical but political and ideological. Brazil was one of the countries which had ratified the most ILO Conventions and where labour rights had constitutional status. Labour reform did not abolish or modify those labour rights. The new Act simply allowed workers and employers, if they so desired, to establish standards relating to work routines, which were valid for a set time. There were no grounds for claiming that, as a result of the reform, collective bargaining nullified the applicable legislation, particularly since the existing legislation had to be applied when no agreement was reached in collective bargaining. It was clear that Act No. 13.647, contrary to what had been claimed, did not undermine the Convention but strengthened its objectives in the framework of Brazilian labour legislation, ensuring that collective instruments could be adopted taking account of current working and production procedures, without interference from the State. In 2015, the Constitutional Court of Brazil recognized the key role of collective bargaining as a mechanism for adapting labour standards to different sectors of the economy and economic situations. In that regard, the labour reform simply confirmed the central objective of the Convention to promote voluntary negotiation, expressly providing that workers’ rights, as established in the Federal Constitution, could not be suppressed or reduced by means of negotiation. Such rights included those detailed by the Employer spokesperson. The new Act sought to establish an environment conducive to collective bargaining by providing the social partners with legal certainty so that they could renew dialogue on issues where negotiation was fraught with uncertainty since it often resulted in cancellation by the labour justice system, even though it was indeed the will of the parties. The workers had not suffered harm as a result of the reform, contrary to what was being claimed by certain unions who were calling for the restoration of the mandatory union tax without providing their members with the services due in return. Existing national remedies had not been used before turning to the ILO. Indeed, the trade union confederations had only gone to the Constitutional Court to demand the trade union tax and not to allege supposed violations of the Constitution or Convention. The labour reform was necessary to boost collective bargaining and modernize a law that dated back to the early 1940s. The new Act, which was the result of a democratic process involving numerous public hearings and the adoption in the National Congress by a large majority, did not undermine the Convention but protected collective bargaining from external interference; it consolidated an effective mechanism for tackling economic problems; it harmonized the legislation with that of other ILO member States and sought to achieve a balance between freedom of negotiation and the principle of worker protection. It was a matter for concern that the ILO could consider that negotiation was only valid if it contained terms and conditions of employment more favourable than those established by the law, in particular because such a notion resulted from a broad interpretation of the Convention, which, if adopted, would end up being binding on all 165 countries that had ratified the instrument. Any changes to the rules of the game established by the Convention should not be permitted. Recalling that only a few years ago his country was regarded as a benchmark for the Committee, he trusted that impartiality and the institutional role of the ILO would prevail in the discussion of the case, on the basis of tripartism and the absence of any political or ideological interests, and requested that in its Conclusions, the Committee took into consideration that collective bargaining should be free and spontaneous, as proposed in the text of the Convention.

The Government member of Paraguay, speaking on behalf of a significant majority of the group of Latin American and Caribbean countries (GRULAC), reiterated her deep concern regarding the working methods adopted by the Conference Committee, which did not involve tripartite consensus. Furthermore, several aspects of the Committee of Experts’ comments raised questions. With regard to the interruption of the regular cycle, in which no report had been produced by the Government, she considered that the existence of criteria in that regard illustrated the need to justify the decision to break the cycle. Referring to the mandate of the Committee of Experts reflected in its General Survey, which indicated that the opinions of the Committee of Experts were not binding and which took into account the application of the Conventions “in law and practice …, while cognizant of different national realities and legal systems”, she expressed regret that, in the case of Brazil, sufficient time had not been granted to evaluate the complexity of the labour reform, which should be examined in its entirety and in terms of its practical repercussions and its interpretation by the courts. In that regard, no consideration had been given to the extensive role of the labour rights contained in the Brazilian Federal Constitution. In the case of Brazil, it was necessary to take into account not only the Constitution but also the specialized system of labour justice, including the labour inspectorate, which was independent of the Government, the fact that labour inspection personnel had the status of employees with state careers, and the maintenance of the framework of the CLT. She reiterated her commitment to promoting collective bargaining and to upholding the principle contained in Article 4 of the Convention. The ordinary meaning of the Article was clear, including the reference to “national conditions”.

The Government member of Panama drew attention to the model for tripartite social dialogue roundtables set up in the country to harmonize the legal system with the ILO Conventions and Recommendations. He also emphasized the crucial nature of the technical assistance provided by the ILO International Labour Standards Department. However, he noted with concern the regulatory methods used to determine the inclusion of Brazil in the list of cases to be examined by the Conference Committee, such as the fact that the Committee of Experts had broken the normal cycle and made comments without receiving a report from the Government. Reaffirming the Government’s commitment to the supervisory bodies, he highlighted the need to adopt working methods that had been duly agreed by all constituents.

The Worker member of Portugal considered that the labour legislation reform adopted by the Brazilian Government followed the matrix of reforms that had occurred in Spain, Portugal and Greece which, since 2009, had led to social regression for workers in southern Europe to levels of several decades earlier. Under the pretext of making labour relations more flexible, increasing employment, ending labour market fragmentation and enhancing collective bargaining, the “troika”, consisting of the International Monetary Fund (IMF), the European Commission (EC), the European Central Bank (ECB), and the Governments had imposed labour law reforms on workers, allowing for collective bargaining to be carried out by informal organizations, eliminating the principle of favourability, increasing hours of work and lowering overtime pay. Such changes had had dire consequences for workers, with labour incomes dropping, unemployment rates reaching figures never seen before, rising from under 10 per cent to over 20 per cent in less than two years, forcing hundreds of thousands of workers, mainly young people, to look for work in other countries. He thus considered that the central objective of these labour legislation reforms had been to cut workers’ and pensioners’ incomes. The reform that was being imposed on the Brazilian workers followed the same matrix, grounds and aims. By mandating that an individual contract of employment could stipulate lower terms and conditions than those set by law or by collective agreements; by permitting that collective bargaining could be engaged in without the participation of trade unions; and by allowing the development of precarious employment relations, the labour reform would lead to an increase in precarious work and to labour market segmentation, instead of combating them. The Government’s labour reform undermined workers’ fundamental rights enshrined in the ILO core Conventions and was in violation of the Convention, since it allowed for collective bargaining without the participation of trade unions and to set aside collective labour agreements by individual contracts. He therefore urged the Government to accept ILO technical assistance to align labour legislation with the international instruments to which they were bound and to respect the indispensable role of the Committee of Experts in ensuring that ILO Conventions were effective.

The Government member of India appreciated the efforts and the positive steps taken by the Government to reform its labour laws with a view to providing legal certainty and reliability to collective bargaining, in consultation with the social partners and in accordance with the Constitution of the country and its international obligations. Countries should not be included in the preliminary or final list of cases before the end of the reporting cycle and without following due process and for other reasons than the technical merits of a case. A genuine and constructive tripartism was sine qua non for an effective and credible ILO supervisory mechanism. In fulfilling its labour-related obligations, the Committee should fully support the Government.

The Worker member of Italy stated that the Government had been implementing a series of reforms in Act No. 13.467/2017 in breach of fundamental principles of the ILO. No consultation with the social partners had been held, no public debate had accompanied the discussion and the Act, which took away the set of existing guarantee, had been approved in record time. Neoliberal policies enacted in a unilateral way had the effect of job insecurity and precariousness. The so-called “innovation” had only entailed the worsening of working conditions and the denial of trade union rights, undermining collective bargaining mechanisms. Act No. 13.467/2017 allowed for collective agreements to worsen the conditions provided for in the law. For millions of Brazilian workers the reforms meant an increase in inequality in one of the most unequal industrialized countries. The criteria and procedure for breaking the reporting cycle of the examination of cases by the Committee of Experts provided for safeguards to ensure the effective supervision of the application of ratified Conventions. That possibility not only strengthened the supervisory system of the ILO, but also ensured that time-sensitive issues, including matters of life and death or fundamental human rights were appropriately addressed. She urged the Government to amend the legislation so as to bring it into line with the Convention.

The Government member of the Russian Federation welcomed the information provided by the Government representative on the merits of the issue, as well as on its procedural aspects. The speaker shared many of the concerns expressed, in particular in relation to the decision to examine this case outside of the regular reporting cycle. Additional explanations regarding the reasons for that decision were needed. When considering the implementation of ILO Conventions, it was important to take into account both law enforcement practice and the general context conditioned by the peculiarities of the legal system of the country concerned. Since the reform had just been adopted, it was necessary to give the Government time to work before making unambiguous conclusions. The speaker believed that there was room for improvement in the working methods of the Committee. The concrete proposals made in this respect deserved a comprehensive study. Given that the Committee was central to ensuring consistent and strict compliance with international labour standards, it must rely on the full trust of governments, workers and employers.

The Worker member of Pakistan recalled that the mandate of the Committee of Experts was clearly spelt out in its General Report. It was vital for the Conference Committee to recall that the legitimacy and rationality of the Committee of Experts’ work was based on its impartiality, experience and expertise. It was on that basis that over the years, exceptional cases had been identified and the reporting cycle broken, when allegations had been sufficiently substantiated and there was an urgent need to address the situation. In addition, observations referring to legislative proposals or draft laws could be examined by the Committee of Experts in the absence of a reply from the Government when it could be of assistance to the country. Therefore, the speaker considered that the Committee of Experts had acted within its mandate and in line with the criteria for breaking the reporting cycle, as the right to organize and to bargain collectively was a fundamental human right that risked being eroded by the enactment of Act No. 13.467/2017.

The Employer member of Colombia noted that the labour reform in Brazil was a product of extensive discussions carried out with the social partners over more than 20 years. It was a question of regulations adopted to improve labour relations in Brazil, as the legislation was aligned with new realities, always on the basis of collective bargaining. The labour reform aimed to establish more favourable conditions for competitiveness, productivity and socio-economic development, while ensuring respect for fundamental labour rights and decent work. He considered that the impact of the reform had been assessed prematurely; a reasonable timeframe for implementation was necessary to reach accurate and substantive conclusions. The Brazilian labour reform did not authorize the repeal of labour legislation through collective bargaining, as had been reported. The changes focused on securing both the outcome of agreements between workers and employers and the scope of collective bargaining. The new labour regulations did not deprive workers of their labour rights and guarantees and did not breach Convention No. 98 or Convention No. 154. The existing labour legislation protected collective bargaining, consolidated an effective and much-needed mechanism to tackle economic problems and provided employers and workers with better opportunities to negotiate, without violating the labour rights enshrined in the Constitution. With regard to the regulation of autonomous employment, the speaker noted that the new legislation clearly defined who were considered autonomous workers as well as the criteria for identifying them. Self-employed or autonomous workers were governed by different standards to those of employees but in both categories decent work was a requirement. The fact that autonomous workers were not in an employment relationship and were therefore not covered by labour legislation did not mean that trade union rights were restricted.

The Worker member of Argentina noted that, according to a recent study submitted to the United Nations Human Rights Council, over 130 countries had introduced pro-austerity policy reforms and labour standards in recent years, and the deregulation of the labour market did not favour growth or employment. Conversely, a growing number of studies confirmed that labour standards had a positive economic impact on both productivity and innovation. The labour reform in Brazil made outsourcing and subcontracting more widespread. It therefore reduced wages, weakened trade unions and collective bargaining, and favoured major multinational corporations. Increased informality and precariousness led to greater inequality. The new legislation abolished the concept of the working day by creating intermittent work; eliminated remedies available to workers to file complaints before the labour courts; allowed for pregnant women to be employed in insalubrious working conditions; and eliminated funding for trade unions, which had a serious impact on the existence of unions and of collective bargaining. By prescribing “negotiations” between employers and workers, without the presence of a trade union, it allowed for the imposition of inferior conditions to those of a collective agreement. Furthermore, the new Act represented an attack on the core standards of the ILO and was a regressive measure that could not be considered as an acceptable response to the economic and financial crises. It was necessary to create sustainable economies, with social protection, secure jobs and decent salaries both in Brazil and throughout the entire American continent.

The Government member of Honduras expressed his concern at the interruption of the regular reporting cycle. He trusted that the Government would make progress in fostering collective bargaining through the adoption of the appropriate measures to allow for the use of free and voluntary bargaining processes and collective agreements that regulated conditions of work.

The Worker member of the United States, speaking also on behalf of the Worker member of Canada, stated that stable labour market institutions, social dialogue and collective bargaining were being dismantled in Brazil. In November 2017, the amendments to the CLT had come into force reducing workers’ capacity to defend their rights and to negotiate improved wages and conditions. The changes permitted unions and individuals to negotiate agreements that lowered wages and conditions while increasing precarious work. Contrary to the concept of collective bargaining, employers and workers could negotiate agreements that lowered standards below what was provided for in legislation. As indicated in the report of the Committee of Experts, Act No. 13.467/2017 was not based on negotiation, but on the abdication of rights on a wide range of issues. The changes to the CLT had created a new category of exclusive autonomous workers and denied an employment relationship even when a worker had been engaged exclusively and permanently by one firm. Such workers were denied freedom of association and collective bargaining rights, and this had resulted in atomized labour relations. The first three months of the new regime had seen a nearly 3,000 per cent increase in the number of stable employment relationships dissolved, mostly concerning low-wage positions held by workers without the higher education supposed to afford them greater individual bargaining power. The changes opened more workers to precarious work and unions would no longer receive a stable contribution from those they represented. In March 2018, unions had received approximately 20 per cent of what they had in March 2017. In the first quarter of 2018, the total number of collective agreements had fallen by 29 per cent over the same period in 2017. In 2018, there had been 1,000 fewer collective agreements than there had been over the six previous years. Unemployment, informality and precarious work had increased in the same period. Brazil was experiencing extreme polarization exacerbated by the deliberate dismantling of social dialogue and mature industrial relations. Labour law reform should not mean abandoning ILO standards. A different path could lead to broadly shared income growth and progress.

The Government member of Bangladesh commended the Government of Brazil for holding a series of discussions with the representatives of trade unions and employers in reforming the CLT that had entered into force in November 2017. Inclusive, comprehensive and extensive consultation with the social partners was key in reforming any legislation concerning labour rights. One of the main aspects of labour reform in Brazil was the strengthening of collective agreements between unions and employers aimed at the possibility for each to negotiate collectively without affecting the rights of workers. Additional time was needed for understanding the impact of the law on the labour market, as it was still in its initial stage of implementation. He supported the view that the reporting cycle should not be broken and comments issued before a report was due and submitted, and agreed with the Government representative’s statement with regard to the reform of the ILO supervisory mechanism. He concluded by underlining the importance of objectivity, transparency, neutrality and impartiality in the work of the Committee through the use of tripartism in all decision-making processes, including for the establishment of the final list of cases and the consideration of conclusions.

The Worker member of the United Kingdom stated that the labour law reforms adopted in Brazil in July 2017 were in contravention of the Convention. The reform had deregulated more than 120 labour standards, including safeguards protecting pregnant women from working with toxic substances, rules on dismissal and equal pay laws. It had also dismantled the collective bargaining system, including by permitting collective agreements to displace statutory standards. The stated goal of the reforms had been to increase flexibility, reduce unemployment and regularize the informal economy. However, unemployment levels in Brazil had remained high with a growing informal economy and a rise in precarious forms of work. Workers in insecure work were deterred from joining trade unions for fear of victimization or job loss. The reforms had also permitted educated workers to enter into individualized contracts which opted out of collectively agreed pay and conditions. As the Committee of Experts had noted, that was a clear violation of the Convention. The speaker called on the Government of Brazil to reform its national legislation and to restore trade union rights, in line with the Convention.

The Government member of Mexico noted with interest the extensive consultation process that had led to the adoption of a legislative reform seeking to provide more flexibility, higher labour productivity, legal certainty and rationality in both the labour market and the legal system. Highlighting his concern regarding the unwarranted break in the regular reporting cycle, he considered that the reform processes needed to be evaluated holistically, taking into account the context in which they were developed and other practical measures that contributed to the development of an effective legal framework aligned with fundamental principles and rights.

The Worker member of Colombia stated that the reform delegitimized the objective of collective bargaining, which was to improve working conditions, by allowing collective agreements or accords to undermine the minimum standards established by law. The restriction on the duration of collective agreements or accords to a maximum of two years, in accordance with section 614 of the new provisions, and the prohibition of the continued legal effect of agreements and accords, curtailed the parties’ scope of action and contravened the Convention. He strongly rejected the possibility for workers to negotiate working conditions outside of collective bargaining or agree to being excluded from the application of agreements or conventions, either individually or collectively, without the participation of trade unions.

Another Worker member of Colombia expressed deep regret at the Government’s non-observance of the Convention and voiced his solidarity with the Brazilian trade union confederations.

The Government member of China shared the concerns expressed regarding the working methods of the Committee. The Committee was at the heart of the ILO supervisory system and its working methods could be improved. There was a lack of transparency in the selection of individual cases, which should be based on objective, fair and transparent criteria, and not on political considerations, in compliance with the established ILO procedures. Governments that were required to appear before the Committee should be informed of the final list in advance, in order to have ample time to prepare. The recommendations made by the Committee should reflect tripartite consensus. Governments should fully enjoy the right to information and the right to participate in the process of examining individual cases. Further, capacity building and technical assistance should be provided by the ILO to the Government concerned.

The Worker member of Paraguay drew attention to the fact that the labour reform in Brazil made work more precarious, weakened collective bargaining and social dialogue and attacked the trade union movement. The reform had been approved during one of the worst moments of political and institutional crisis in Brazil’s history, without dialogue with the workers and trade unions. It would result in the business community being able to carry out mass dismissals, without needing to hold discussions with the trade union. As well as limiting trade union representation, the reform deprived the Brazilian trade union movement of its principal sources of funding. Recalling that in recent years the Brazilian trade union confederations had been denouncing anti-union practices and the proposed reforms that had recently been implemented, he expressed his support for the discussion on this case of violation of the Convention.

The Worker member of Uruguay expressed his solidarity with the Brazilian trade union confederations regarding the effects of the new Act, which had increased unemployment and poverty and had led to a decline in living conditions in the country. Regarding the need to wait for the Government to send its report, he maintained that the need to comply with the provisions of the Convention was more important than the reporting obligation. In the Southern Cone region, the MERCOSUR Social and Labour Declaration, a tripartite tool that protected workers’ rights, had been concluded following extensive debates between the social partners but the labour reform in Brazil sought to impose formulas from the 1990s to deregulate labour relations.

An observer representing the World Organization of Workers (WOW) indicated that the Brazilian labour reform violated the right to organize, as established in the Brazilian Constitution and in Articles 3 and 4 of the Convention. The labour reform regulated employment contracts between workers and employers on an individual and private basis, without the participation of trade unions, which made workers vulnerable and put them in an extremely dangerous situation. Such disregard for trade unions and for collective bargaining allowed employers to carry out collective dismissals. In recent years, Brazilian worker organizations had been speaking out against anti-union practices. It could be a step backwards for trade unions as an institution worldwide if different countries were allowed to attack freedom of association and collective bargaining.

The Worker member of the Bolivarian Republic of Venezuela considered that the Brazilian labour reform, which permitted negotiations that undermined workers’ rights, was a step backwards because it left workers without protection and violated the Convention. It also allowed trade union membership to be terminated if the worker earned a wage that was at least two times higher than the ceiling for benefits from the general social security scheme. That could weaken the strength and unity of trade unions. In addition, the reform established the concept of an exclusively autonomous worker, which violated the right to organize and to collective bargaining.

The Employer member of Mexico emphasized that the ILO recognized collective bargaining as one of the main means of freely and voluntarily establishing labour conditions and other regulations through representatives appointed for the purpose. Collective bargaining was a binding instrument that placed an obligation on parties and ensured legal certainty. Unfortunately, before the labour reform in Brazil, collective agreements were continually subject to interference by the authorities which annulled them on a recurring basis. The labour reform recognized and gave priority to collective bargaining within the framework of the Constitution, which established several fundamental rights that were inalienable.

The Employer member of Guatemala thought that the new legislation responded to the need to strengthen collective bargaining, under the terms set out in Article 4 of the Convention. The fact that the workers’ rights enshrined in the Constitution were the basis for negotiation was a strong guarantee of protection. Before the new legislation had come into force, a Constitutional Court judgment had expressly acknowledged the important role of collective bargaining as a mechanism to adapt labour standards to different sectors of the economy and different economic conditions. He underlined the fact that, before the reform, government interference in the form of annulling terms agreed between the parties had been fiercely criticized and subject to complaints from Brazilian workers and employers. In 2011, a major trade union in Brazil had proposed the adoption of a collective agreement with the specific objective of ensuring that collective bargaining took precedence over the legislation. The reform allowed those who did not want to engage in collective bargaining to enjoy the protection of the legal system; those who did would have the opportunity to adapt legislation to better suit their circumstances, without prejudice to the considerable guarantees enshrined in the Constitution.

The Worker member of Chile pointed out that, in many aspects, Brazilian legislation on freedom of association had been exemplary before the adoption of Act No. 13.467. He noted with concern the recent Act reforming the CLT, which was affecting compliance with the Convention. He observed with great concern that, in the name of allegedly defending employment, investment and economic growth, the country had resorted to the classic formula of denying workers their rights, thus violating the provisions of the Convention. He recalled that inequality was the most significant challenge of the century and possibly in the history of humanity, and that collective bargaining, with strong trade union protagonists, could contribute to establishing a path towards equitable and comprehensive growth that would also allow for such inequality to be reduced. To that end, the Committee should urge the Government to comply with the Convention, by revising the aspects of Act No. 13.467 that were not in line with it, with the aim of promoting free and voluntary collective bargaining and sustainable development goals.

The Employer member of Spain said that the reform of Brazil’s labour legislation had highlighted the fact that collective negotiation took precedence over ordinary law, which, because it was so rigid, had left workers and employers very little room for manoeuvre prior to the reform, leading to many disputes. Modernizing labour law had strengthened collective bargaining, in line with the Convention. Enterprises and workers, represented by the unions, could negotiate and agree working conditions suited to the specific reality of different sectors, regions and enterprises. He emphasized that the law did not make collective bargaining compulsory; it was based on the independence and free will of the parties.

An observer representing the Latin American Association of Labour Lawyers highlighted the seriousness of the case and its importance for the effective enforcement of the ILO supervisory system. She emphasized the role of collective negotiation as a mechanism for redressing the inequalities present in the relationship between an employer and a worker. The need for international minimum standards was based on that premise. International standards were also a result of negotiation processes and took precedence over national law when it was less favourable to workers. The Brazilian labour reform that provided that individual agreements prevailed over collective agreements represented a serious and unacceptable regression in terms of social rights, which had an impact in many countries, including in Latin America.

The Employer member of Uruguay drew attention to the practice of initiating labour court proceedings in the region, which impaired collective bargaining and business management. The practice was bolstered by an inadequate legal framework. The Brazilian labour reform sought to find solutions in cases of abuse, giving assurance to all social partners on the implications of agreements.

The Government member of Egypt noted the information provided by the Government representative on measures taken to comply with the Convention. She welcomed the efforts made to strengthen its labour legislation and bolster collective bargaining. She called on the Government to pursue its efforts to fully respect the Convention, and to avail itself of ILO technical assistance in that respect.

The Employer member of Chile considered that the Committee of Experts had interrupted the reporting cycle without any explanation, in order to carry out a hurried evaluation of Act No. 13.467. It was clear that insufficient time had been allocated to evaluate the impact of the legislation in a serious and responsible manner. The comments of the Committee of Experts gave the Convention an interpretation that was not reflected in its Articles, as they considered that the general objective of promoting collective bargaining implied reaching an agreement on labour terms and conditions that were more favourable than those established in the legislation. Furthermore, such comments did not highlight the scope and detail of the labour rights provided for in the Brazilian Constitution, or all of the legal remedies available for workers to safeguard their rights. Article 4 of the Convention did not envisage any restriction on collective bargaining in the sense that it could only establish conditions that were more favourable than those laid down by the legislation. Quite to the contrary, it expressly provided for the possibility of adopting measures that were appropriate to national conditions. In a changing world, and in the face of new forms of employment, it was important for laws to safeguard the freedom of the parties to adapt to change and modernization.

The Government member of Angola, highlighting the ties of friendship between the two countries, supported Brazil’s statement and considered that the Brazilian delegation’s oral statement indicated that the Government had fulfilled its obligations.

The Employer member of Greece indicated that there had been a methodological error in the data on unemployment and informality in Brazil which had been referred to during the discussion. This was misleading the Committee. The relevant indicators released in May 2018 by the Brazilian Institute of Geography and Statistics made it clear that when the seasonality of economic activity was accounted for, the unemployment rate in Brazil had been reduced in 2018 as compared to the same period of 2017, since the unemployment rate was reduced by 0.7 per cent repeating the trend recorded in the mobile quarter from January to March 2018. Furthermore, it was too early for an assessment of the new legislation as it had still not been fully implemented. The speaker considered that the labour reform had potential for growth in formal and quality jobs.

An observer representing Public Services International (PSI) stated that she was also speaking on behalf of Education International (EI), IndustriALL Global Union and the International Transport Federation (ITF). The possibility, by means of collective bargaining, to derogate from statutory minimum rights breached the fundamental objective of the Convention, as well as Conventions Nos 151 and 154. The speaker rejected the Government’s assertion that the Committee of Experts had erred in its interpretation, and expressed support for that Committee’s interpretation of Article 4 of the Convention and its technical comments. The new section 611A of the CLT that allowed collective bargaining agreements to reduce the rights and protections afforded by labour legislation could have catastrophic consequences for workers and trade unions. In the aviation and maritime sectors, such derogations could interfere and reduce sector-specific safety standards, including protections derived from technical ILO Conventions. The safeguards contained in section 611B of the CLT were not sufficient. It was also possible that collective bargaining would derogate from the application of ILO Conventions. A recent decision by the Superior Labour Court had contradicted the claim that the reform was a modernization of the labour legislation aimed at strengthening negotiations and unions. The Court had recently ruled on the illegality of a strike of oil workers and established a substantial daily fine for unions that had failed to suspend the strike. That created a hostile environment that was not conducive to mature social dialogue. In December 2017, the President had vetoed Law No. 3831, regulating collective bargaining in the public administration, which was an affront to Brazilian civil servants, particularly as Brazil had ratified Convention No. 151. Law No. 3831 had been built by consensus in the bipartite Chamber of Government and Public Servants of the Ministry of Labour and Employment and had been approved unanimously in the Federal Senate and the Chamber of Deputies of Brazil. The labour reform also had direct consequences for the education sector relating to the privatization of secondary education and the minimum salary of teachers. Contrary to what had been indicated by the Employer member of Brazil, Act No. 13.467/2017 had not been preceded by a broad process of discussion. Brazilian trade unions had merely been informed of the proposed amendments. The ILO supervisory bodies had said that it was imperative that full and frank consultations take place on any question or proposed legislation affecting trade union and collective bargaining rights. Comprehensive labour law reform, in consultation with all social partners, was therefore necessary to bring the Brazil’s legislation into conformity with the Convention.

The Government representative appreciated the leadership, firmness and serenity of the Chairperson in conducting the work of the Committee and expressed his gratitude to the countries and speakers who had expressed their support to Brazil and to the importance of improving the supervisory system for greater predictability, transparency and real tripartism. The Government had come prepared to dialogue and had presented technical arguments to prove the full consistency of the labour reform with ILO standards. The discussion had reinforced the belief that the debate on the reform was premature and he reaffirmed his concern about the improper use of the mechanism to serve other purposes than the mandate and objectives of the Organization, which should remain technical, impartial and objective in order to keep its effectiveness and legitimacy. He then reacted to some of the points brought forward in the discussion, reiterating that the labour reform was the result of many years of discussions on labour market challenges in Brazil due to the shortcomings of the labour legislation and to the malfunction of the labour courts. Such discussions had become even more urgent, in a context of hard economic crisis in recent years. The year 2016 had witnessed the highest unemployment rate ever recorded since the beginning of the series, in 1992, and an 82 per cent increase in the unemployment rate since 2012. The crisis had not been generated by the Government, which could not be held responsible for it, but the reform was part of the solution and was already producing results. Between January and April 2018, more than 310,000 formal jobs had been created, the largest volume in the previous five years. Although statistics had been presented to criticize the modernization of labour in Brazil, when comparing the quarter from February to April 2018 with the same period from 2017, the unemployment rate had fallen 0.7 percentage points, repeating the trend recorded in the mobile quarter of January to March 2018, compared to the same quarter of 2017, when the reduction had been of 0.6 percentage points. He rejected claims that the reform made rights precarious. He affirmed that the reform was fighting informality, the worst form of precariousness, and allowed for new forms of employment with all the legal guarantees and constitutional rights, namely as it had increased by almost eight times the amount of the fine applied to companies failing to register their workers. With regard to article 444 of the CLT, the Committee of Experts’ observation had no grounds as the Convention did not refer to individual contracts; moreover, Act No. 13.467/2017 only foresaw the application of such provision in exceptional cases, for workers with a higher education degree and with incomes at least two times higher than the ceiling for benefits of social security. The legal provision aimed at stimulating negotiations to best address the particular situation of such workers, usually not foreseen in collective agreements. While the previous legislation had already allowed for the differential treatment of those workers, the labour reform had set objective criteria for ensuring the provision would only apply to those with negotiation capacity, without prejudice to their rights. The reform had not weakened the unions, as the union contribution had not been eliminated and could still be deducted with the agreement of the worker or company. To promote the independence of trade unions from state funding, in line with the Convention, the obligation of every worker to contribute to a trade union had been abolished, but Brazilian unions could still rely on other sources of financing permitted by law. He also rejected that the reform had taken place without consulting workers, as a series of debates had been organized by the previous Minister of Labour, who had met in December 2016 the six main trade union confederations (centrais sindicais) and representatives of the major employers’ confederations, to discuss the proposal prepared by the Ministry of Labour, which had subsequently been forwarded to the National Congress. During the legislative process in 2017, 17 public hearings, seven regional seminars and more than 40 meetings with interested stakeholders had been held in Parliament and in different States, leading to the approval of the Bill by a significant majority in Congress and later in the Senate. The labour reform Bill had received 1,340 amendments, one of the largest numbers in the entire history of the Brazilian Parliament. Of the 452 amendments accepted, 62 had been authored by opposition parliamentarians. Amendment number 150, which had been accepted, proposed the possibility to bargain collectively on daily hours of work, within the constitutional limits, the protection against unjustified dismissal in the event of reduction of hours of work and/or salary among other measures related to the strengthening of collective bargaining. The author of the amendment had underlined that it “resulted from the valuable contribution of the combative National Confederation of Commerce Workers (CNTC)”, demonstrating the effective participation and acceptance of suggestions from workers. With regard to representation in the workplace, it had been a historical demand of the Brazilian trade union movement, foreseen for nearly 30 years in article 11 of the Constitution and regulated by the labour reform, in line with the provisions of ILO Convention No. 135. Workers’ representatives in the company did not compete with the mandate of the unions. The number of collective agreements had been dropping since 2016, which suggested that it was more related to the effects of the economic crisis than to the labour reform. In addition, the same study quoted by the workers’ representative indicated that there had been a qualitative change in the agreements signed, which evidenced the expansion of the scope of bargaining and the concern to improve the representation at the workplace. Concerning pregnant women, the new rule had been designed to prevent discrimination in hiring women; it had been formulated by health workers’ unions and defended by the female Congressional Caucus, and guaranteed the protection of maternal and infant health. Regulatory Standard No. 15 had a broad definition of an unhealthy workplace which included, for example, hospitals and airports, and the rule remained the protection of pregnant women. A 12-hour working day was only permitted if followed by 36 hours of compulsory rest, which, at the end of the week and month, represented less hours worked with no reduction in wages. The Committee of Experts had also made a serious mistake by considering that the law excluded the possibility of independent contractors to form unions and engage in collective bargaining. That was provided for in article 511, which dealt with trade union organizations and had not been altered by the new law. The purpose of article 442B was simply greater conceptual clarity and certainty about the elements that characterized the employment relationship, in line with ILO Recommendation No. 198, and as defined by article 3 of the CLT, unchanged by the reform. The Government representative rejected the Committee of Experts’ comment that the Convention should apply to autonomous workers, since it did not provide a definition of “worker” for the purposes of application of the Convention, and the new legislation did not change the characterization of employment already present in the CLT. The Government had worked constructively and in respect for the common interest of all members of the Committee despite the shortcomings of the current process. He reiterated the call for all members to engage in an urgent, collective and effectively tripartite effort to reform the standards supervisory system.

The Employer members expressed appreciation for the detailed information provided by the Government representative, including with regard to the consultations that had taken place in connection with the labour law reform, and on the nature of the reform. Certain aspects of the discussion in the Committee had fallen outside the appropriate scope of the discussion on the application of the Convention. The Employer members were not able to conclude that Brazil was in violation of its obligations under the Convention as a result of the labour law reform. Modernizing labour law could be a difficult process leading to change and uncertainty. The discussion of the case had been premature. Article 4 of the Convention required the Government to encourage and promote voluntary negotiation between employers and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. That obligation should guide the consideration given to the information provided by the Government. With respect to the labour law reform, a mechanism that allowed collective agreements to prevail over provisions of law could be seen as promoting collective bargaining in law, by extending the scope of collective bargaining while also ensuring that the floor of rights in the Constitution remained respected. It could not constitute a violation of the obligation to promote voluntary bargaining in law. There was also no information available to support the assertion that the reform constituted a violation of the Convention in practice. There had been no objective assessment of the impact of the reform on the labour market and on collective bargaining. Evidence was therefore required in order to assess the impact it had had on the social partners’ ability to engage in collective bargaining. The issue of the relationship between individual contracts and collective agreements could be further examined by taking into account the Employer members’ view that workers also had contractual freedom and could not be bound by a collective agreement against their will. The issue of an individual contract prevailing over national legislation was not within the scope of the application of the Convention. Certain other issues that had been raised during the discussion, such as maternity protection, were also not within the appropriate scope of the discussion. The Employer members encouraged the Government to provide information on the content and application of the labour law reform, in particular with respect to the extent to which the collective bargaining partners had made use of the possibility of negotiating collective agree which workers had made use of the possibility to adopt individual contracts prevailing over collective agreements. The Employer members noted the Government’s indication that the views of the Committee of Experts on autonomous or self-employed workers had been inaccurate. Accordingly, more information on the effect of the extension of the definition of an autonomous worker should be provided by the Government, as well as information on the impact it had had on the ability of those workers to represent their interests. The Employer members concluded by encouraging the Government’s continued commitment to international labour standards, in cooperation and consultation with the national workers’ and employers’ organizations.

The Worker members expressed their deep disappointment at the remarks of the Government representative describing trade unions as political instruments, which would had done little to advance the rights of workers. The right to freedom of association was a prerequisite for the right to organize and bargain collectively. Regarding remarks on the ability of the Committee of Experts to assess Brazilian legislation taking into account the context of the country, they recalled that members of the Committee of Experts were appointed by the ILO Governing Body and that they were eminent legal experts from all regions of the world. They reiterated their deep respect for the work of that Committee. They also recalled that document D.1 on the working methods of the Conference Committee had been adopted by unanimous tripartite consensus. Governments had ample opportunity to participate in the Conference Committee and to complement the information included in the report of the Committee of Experts. They stressed that, as recalled in the preparatory work to Convention No. 154, collective bargaining was a process intended to improve the protection of workers provided for by law. As recognized in the ILO Constitution, in the Declaration of Philadelphia, in the 1998 Declaration on Fundamental Principles and Rights at Work and in the 2008 Social Justice Declaration, collective bargaining contributed to the establishment of just and equitable working conditions and other benefits, and thereby to social peace. That could not mean going below statutory minimum protections. That principle was well supported throughout many jurisdictions. For example, the Court of Justice of the European Union had established that collective bargaining agreements fell outside the scope of competition law provided that those agreements seek to adopt measures to improve conditions of work and employment. The European Court had even extended this principle in order to protect the right of workers who were falsely classified as self-employed to bargain collectively. The Worker members were deeply worried about the extensive and structural reform of the collective bargaining system adopted in 2017 and its grave consequences on the enjoyment and realization of the fundamental right to collective bargaining for workers in the country. In undertaking that reform, the Government had failed to duly take into account prior comments of the Committee of Experts in this regard. The social partners had merely been informed of those permanent and far-reaching changes, which would effectively lead to the breakdown of industrial relations. A comprehensive legislative reform process had to be undertaken in order to reverse the devastating changes made. The Government should ensure that the legislation was in full conformity with Article 4 of the Convention. The legislative provisions with respect to the general possibility, by means of collective bargaining, to reduce the rights and protections afforded by the labour legislation for workers, had to be revoked. Moreover, the provisions permitting individual derogations from the law and from collective agreements for workers with a higher education diploma and earnings above a certain limit had to be repealed. The definition of an autonomous worker had to be revised to ensure that misclassified workers were not excluded from their right to organize and to bargain collectively. Given the absence of effective tripartite consultations during the legislative reform process, the Worker members urged the Government to engage the social partners in genuine negotiations within the framework of the national tripartite body. In this regard, they called on the Government to avail itself of ILO technical assistance in order to develop a time-bound roadmap for legislative reform. The Government should also accept a direct contacts mission before the next International Labour Conference in order to assess progress made. Finally, they believed that it was crucial that the case be included in a special paragraph of the report.

Conclusions

The Committee took note of the written and oral information provided by the Government representative and the discussion that followed.

Taking into account the fact that the Committee of Experts examined this case outside of the regular reporting cycle, considering the Government’s oral submissions to the Committee regarding the labour law reform and its compliance with its obligations under Convention No. 98, and the discussion that followed, the Committee recommends the Government to:

- provide information and analysis on the application of the principles of free and voluntary collective bargaining in the new labour law reform; and

- provide information on the tripartite consultations with the social partners regarding the labour law reform.

The Committee requests the Government to provide this information to the Committee of Experts before its November 2018 session.

The Government representative noted that a clear majority of Committee members had undeniably expressed criticism for the working methods of the Committee of Experts on the Brazilian case. He urged the Committee of Experts and the Conference Committee to give full consideration to this important fact. The examination of the Brazilian case was in breach of the most basic principles of due process. A system allowing for this to happen, with no effective checks and balances, failed the purposes and objectives of the ILO. It also impaired the necessary strong and shared perception by member states and social partners that the system should function in a fair and equitable way, based on the technical merits of the cases. The system had failed on all those accounts. Its reform was a matter of urgency and necessity for the good of the Organization. His Government had presented robust arguments on the relevance and timeliness of the labour law modernization, which was creating more jobs, formalizing important sectors of the economy, preserving labour rights and promoting collective bargaining in full compliance with the country’s international obligations and in particular Convention No. 98. While thanking the majority of the Committee for their parliamentary behaviour, the speaker regretted that some members had passed judgement on issues that had no bearing on the work of the Committee. This was yet another example of the politicization of the Committee which should not be accepted. His country rejected any attacks on its institutions. Over the last two years, Brazil had faced a political crisis and an economic recession. It had implemented important economic and labour reforms, enacted key legislation and promoted positive change. Democracy was alive, civil society was vibrant, political debate was in full force, the rule of law was in place and strong and the judiciary remained fully independent. As to the conclusions agreed solely by the social partners, of which he had just been informed, they were yet another example of the flawed working methods of the Committee which lacked tripartite consensus. If information on the case was incomplete, this was not due to a lack of political engagement on behalf of his Government. It was rather a matter of reality imposing itself as the reform was only six months old and facts could not and, above all, should not be fabricated. Concerning the reference to consultations, the focus of the discussion should be the application of Convention No. 98 and any issue pertaining to other conventions should evidently be dealt with according to the relevant reporting cycles. The speaker concluded by indicating that his Government would examine the text of the conclusions that had just been submitted to him and, if appropriate, provide a response in due course.

Individual Case (CAS) - Discussion: 1998, Publication: 86th ILC session (1998)

A Government representative of Brazil said that his country attached great importance to the work of the Committee, as illustrated by the support that it gave at the international level for the ILO, which it considered to be the appropriate forum for labour issues. Brazil had also provided one of the highest numbers of reports to the Committee of Experts and had not failed to reply to any of its observations. Even so, and perhaps for that reason, it had often been called upon to provide additional information to the Conference Committee on the observation made by the Committee of Experts. With regard to the communication from the Sindicato dos Arrumadores de Sao Sebastiao in June 1997, he stated that information had been provided to the Committee in the context of the application of Convention No. 137, in relation to which the Committee of Experts had stated that it would examine the information provided at its 1998 Session due to the large number of documents which it had received. Without the comments of the Committee of Experts on this question, discussion of this matter would be prejudiced. Nevertheless, he stated that the Ministry of Labour had established a mobile mediation unit for the maritime and port sectors which would help improve industrial relations in those sectors. With regard to Article 4 of the Convention, he stated that section 623 of the "Consolidation of Labour Laws" (CLT) was not an obstacle to free negotiation, since Interim Provision No. 1540 of June 1997 clearly covered collective bargaining until a constitutional reform was undertaken, which would require a long time, many consultations and a long legislative process. Meanwhile, the Government had started to promote a serious labour reform based on the expansion of areas of negotiation and the strengthening of trade union organizations, with the objective of making it possible to ratify Convention No. 87. The Government representative stated that the key points of this reform included the reaffirmation of the role of tripartism in the formulation of labour policy, even though trade unions and sectoral unions participated fully in the various councils and committees, and particularly in the council which administered the most important social fund in the country. Another key point in the reform was the expansion of the scope of negotiations, with the transfer to direct negotiations between employers and workers of a number of rights and duties which were regulated automatically by law, including wages, working time and participation in the profits and results of the enterprise, in accordance with the Convention. Further elements of the reform included the abolition of rules respecting trade union monopoly, territorial restrictions and compulsory contributions with a view to strengthening the legitimacy of trade unions, within the spirit of Convention No. 87, and a reduction in the power of labour tribunals to prevent their legal intervention before negotiation procedures had been exhausted, in accordance with a recommendation by the Committee of Experts and the Committee on Freedom of Association. Convention No. 98, as well as Convention No. 87 to a certain extent, were currently central to the Government's preoccupations with the objective of strengthening trade union organizations. In any event, the programme for the modernization of industrial relations subjected all decisions on new forms of contracts to the presence and authorization of trade unions.

With regard to Articles 4 and 6 of the Convention, he recalled the information provided to the Committee of Experts, which understood that the country was undergoing a far-reaching reform programme and that it would be necessary to wait a while for the results. The Government was committed to transforming the State to make it more efficient and responsive to the needs of its citizens. It was seeking greater flexibility in relation to public employees and opening up the opportunity to adopt different systems for the functions and careers which were not typical for the State, which could in turn facilitate the adoption of more modern practices of administration and co-administration.

He said that the Government had proposed a substantial series of reforms to consolidate the economic stabilization plan, to which reference was made in the observation, which had given positive results that had benefited workers. These measures had been adopted within the framework of respect for democratic principles, which required debate, negotiation and a full legislative process, as well as in a context of international financial instability, which had made it impossible to progress more rapidly and with fewer social costs.

The Workers' members thanked the Government representative for the explanations provided and recalled that the Committee of Experts had been commenting on the case for many years. It had last been examined by the Conference Committee in 1991. Despite the detailed report to which the Government representative referred, it had to be noted that the Committee of Experts had once again needed to return to several difficulties in the application of the Convention bearing on very important problems of principle which had a serious impact on the collective bargaining system. Intervention by the authorities in collective bargaining and the determination of wages and conditions of employment, whether in the para-public sector or the private sector, appeared to be a structural feature of the Brazilian system of industrial relations. In effect, the problem was not limited only to a few transitional or isolated provisions, but involved a series of processes and practices which had their origin in the labour codes of dictatorial regimes inspired by Mussolini's Labour Code. The Committee on Freedom of Association had also dealt with several cases which illustrated the inadequacy of the collective industrial relations system, including Cases Nos. 1866 and 1889. It was evident that, as the 21st century approached, such legislation was not compatible with the existence of a modern industrial relations system and social rules adapted to economic globalization. Despite the changes adopted to the legislation and machinery, the authorities retained their fundamental capacity to intervene in the broadest sense of the term in negotiations and the implementation of collective agreements.

During its discussion of this case in 1991, the Conference Committee had indicated its grave concern at the continued application of section 623 of the "Consolidation of Labour Laws", which gave the authorities broad powers to annul collective agreements or arbitration rulings which were not in accordance with the Government's wage policy. The Committee of Experts had been obliged to return to the matter once again this year and to call for the formal repeal of a provision, which the Government stated had not been applied in recent years. The Workers' members agreed that this provision should be repealed formally. Section 623 had already been amended or supplemented, but the public authorities in the broad sense of the term had other means available to them to intervene in the collective bargaining process, particularly through specific labour tribunals. In 1991, the Government representative had stated that an employer could have recourse to the labour tribunals to seek to annul or amend collective agreements. The Workers' members considered that the tripartite composition of the tribunals did not provide sufficient guarantees against interventions in the negotiation process and its results. Everything depended on the functions and objectives assigned to these tribunals and their operation in practice. They sometimes appeared in various ways to be an instrument of state interference in collective bargaining. Furthermore, the succession of temporary economic stabilization plans which had been adopted in recent years also established possibilities for direct or indirect intervention in collective agreements.

In its conclusions in 1991, the Conference Committee had emphasized that it was aware of the seriousness of the economic and financial situation in the country, but had recalled that any economic stabilization policy had to be the product of dialogue, not constraint. The Committee of Experts had also rightly reminded the Government once again of the need to take measures to promote the development of a complete collective bargaining procedure for the determination of the conditions of employment of public officials not engaged in the administration of the State.

For many years, the Government's reports and statements had referred to various projects for the amendment of the legislation. In 1995, a labour legislation commission had been established under the Ministry of Labour to examine priority draft legislation. The Government representative had once again reported several draft texts on collective bargaining and had said that they had reached various procedural stages. It was necessary for the Government to provide information on the progress of these draft texts and to transmit a copy of the laws that were adopted, as requested by the Committee of Experts. A country that was as important as Brazil should have the required competence in the formulation of laws and the measures necessary to adapt and modernize its industrial relations system in accordance with the recommendations of the supervisory bodies. Evidently, it could call for ILO technical cooperation for this purpose, but only if it had the true political will to make real changes in the law as a whole. The Workers' members were bound to insist that the industrial relations system be brought into conformity with international labour standards and that the traces of an authoritarian conception of industrial relations inherited from dictatorial regimes be eliminated from the labour legislation.

The Employers' members also recalled that the Conference Committee had last examined the application of the Convention by Brazil at the beginning of the decade. Since then, the Committee had examined other problems related to the application of Conventions by Brazil. The promotion of voluntary collective bargaining processes was the central objective of the Convention under discussion. Such processes should be developed and applied as much as possible by the countries concerned. In general, the legislation in Brazil appeared to provide the necessary legal basis. However, the relevant provisions were contained in a very complex network of cross-references between various texts, with the added complexity of the requirement to observe wage indices agreed on by the social partners or, if they could not agree on such indices, those formulated by the State. In addition, section 623 of the "Consolidation of Labour Laws" entitled the authorities to nullify collective agreements which did not comply with government wage and economic policies. The basis of the criticism levelled against the Government was that this power ran counter to the objective of the Convention, namely the promotion of voluntary collective bargaining, by allowing considerable room for government interference. In the past, the Government had stated that this provision was only "virtual", whatever that might mean in legal terms, and had not been applied in recent years. The Employers' members agreed with the response of the Committee of Experts, which had been that if the provision were "virtual" it could be repealed so as to ensure that collective bargaining was not hampered. The Government representative had not added many new elements. It was clear that the country was undergoing a fundamental process of reform, although it was not evident which direction the reform would take or what its results might be. The Employers' members called for the reforms that were being adopted to proceed in the desired direction.

The second point raised by the Committee of Experts concerned the need for the Government to take measures to promote voluntary negotiation by public servants not engaged in the administration of the State. The Committee of Experts had noted the Government's indication that the Supreme Federal Court had declared unconstitutional the section of Act No. 8112 of 1990 which granted public servants this right. In its reports, the Government had referred to the administrative reform that was being carried out and the measures that were now before Congress.

On both of the above issues, the Government should be requested to report on the progress achieved. The Employers' members pointed out that the issues, particularly with regard to wage negotiation, were not isolated and could not be resolved independently of other economic questions. Total freedom of collective bargaining did not exist anywhere. The State could always intervene in various ways, for example indirectly through financial and fiscal policy, which could not be construed as being interference in the collective bargaining process. However, it was important for the basic trend to be towards greater opportunities for free collective bargaining, rather than greater limitations on it. The Government should therefore review the obstacles to collective bargaining and examine whether state interference was necessary, or whether the objectives of the Government could be achieved in other ways. The Government should be requested to provide a detailed report on the measures that were being taken so that the Conference Committee could examine the matter once again in the near future in the light of the new information provided.

The Worker member of Brazil congratulated the Committee of Experts for its treatment of this case, which reflected the most important aspects. Brazil, according to the speaker, had not applied the Convention since the time of its ratification 46 years ago. Several facts had to be understood in order to understand the case fully. First, the country had undergone five economic structural adjustment programmes within the past 12 years. Most of them had resulted in interference with collective agreements, changed negotiated working conditions, and upset negotiated wage increases. Under these programmes, an economic agenda had taken precedence over the obligation to observe Convention No. 98. Second, while it was true that section 623 of the "Consolidation of Labour Laws" had not been applied by the Government in recent years, labour courts continued to apply it. There were also no guarantees that the Government itself would not resume applying it. It was therefore incorrect to say that section 623 was only a "virtual" law. Third, it was important to recall that public servants continued to be excluded from the right to collective bargaining. The Supreme Federal Court had found that such a right was unconstitutional and it was clear that the purely administrative reforms suggested by the Government would provide no solution to the problem. Fourth, labour courts were given special powers by the Constitution. They were engaged in the compulsory settlement of collective disputes and sometimes used legal procedures which did not follow legal due process. Stressing the Government's failure to apply the fundamental standards of the ILO and the recommendations formulated by its supervisory bodies in respect of the Convention, he asked the Committee to recommend once again that the Government make the necessary changes so as to apply fully freedom of association and voluntary collective bargaining.

The Worker member of the United States commended Brazil for having ratified, along with 136 other member States the Convention and for its intention, at least at the date of ratification in 1952, to bring its labour law into conformity with the principles of freedom of association and genuine collective bargaining. He supported the Committee of Experts' recommendations concerning this case, in particular that public servants not engaged in the administration of the State should be given full collective bargaining rights. The Supreme Federal Courts' 1994 decision denying these rights was in direct contravention of the Convention and the National Congress should be pressed by the Government to pass the necessary laws to ensure compliance with the Convention. It appeared that there had been no collective bargaining between public servants and the Government for the last three years. The speaker observed that the Committee of Experts' comments dealt with the issue of whether section 10 of Interim Provision No. 1079, which provided for free collective bargaining over wages and other conditions of employment, would not be pre-empted by the provisions of the "Real Plan", the Economic Stabilization Plan adopted in 1994, and whether section 623 of the "Consolidation of Labour Laws" had been suspended. According to section 623, the authorities had extensive powers to cancel collective agreements or arbitration awards which were not consistent with the rules set by the Government's wages policy. In fact, the text referred to any provision which "directly or indirectly" conflicted with the entire economic/financial policy of the Government. This was so broad that it could be invoked to invalidate a collective bargaining agreement which included new and improved conditions for workers. Section 623 effectively invalidated free collective bargaining. Reference by the Government to section 623 as merely "virtual" was interesting in so far as it would make common sense to repeal the law if it did not, in fact, exist in the first place. The Government should, therefore, take steps rapidly to repeal section 623.

The Worker member of Argentina noted that, despite the information provided by the Government, the real situation was different. In practice, public servants had not been able to negotiate collectively since 1994, by decision of the Supreme Federal Court. This had resulted in the freezing of wages, which had not been adjusted since January. It was a cause of concern that collective bargaining could not be used as a means to freely determine conditions of work, since section 623 of the "Consolidation of Labour Laws" severely restricted free negotiation by binding it to the Government's economic and financial policy. The compulsive intervention of the courts in collective disputes prevented the free negotiation of wages and subjected them to government policy. The reforms proposed by the Government did not limit the power of the labour courts to intervene in disputes and therefore seriously weakened the freedom of negotiation guaranteed by the Convention. The Conference Committee needed to insist on the continuation of the reforms that were under examination in order to achieve the objective of unconditional and unlimited collective bargaining. The democratization of industrial relations in the countries of the Southern Cone of Latin America was essential for the integration of their markets. He therefore urged the Government to facilitate the implementation of the social dimension of MERCOSUR, which would benefit all workers in the region.

The Worker member of Uruguay said that the situation of the legislation on collective bargaining, and in particularly section 623 of the "Consolidation of Labour Laws", was a cause of concern for all the workers in the countries of the region, since it was not in accordance with the agreement to coordinate labour legislation and respect core ILO Conventions. The ILO had provided technical assistance with the objective of achieving this coordination in labour matters. Economies could not be modernized if workers' basic rights, such as collective bargaining, were sacrificed. Collective bargaining was the most efficient method of regulating markets and it was unacceptable for economic restructuring to be achieved at the cost of the social dimension, as envisaged by section 623 of the CLT. Although the Government stated that it did not apply section 623, the provision was in fact given effect by the labour courts, which used it to restrict and undermine collective agreements. The situation was even worse for public employees, who did not enjoy the right to collective bargaining, as if they were second-class citizens.

The Government representative thanked the speakers for their contributions to the debate. He recognized the "profound knowledge" demonstrated by the Workers' members concerning the labour situation in Brazil, but deplored that they were out of date regarding the most recent changes in the world of work. The labour court, for example, was applying an internal instruction according to which unilateral measures in labour disputes would not be receivable until all necessary steps had been taken to achieve collective negotiation and conciliation. He had noted the comments and said that they would be examined carefully. When new measures were taken, the Committee would be duly informed. He recalled the information provided, including the progress made by the Government in modernizing the labour laws and denied the existence of any intervention in industrial relations, contrary to what some Worker members had stated.

The Government representative stated that it was exaggerated for the conclusions to state that tangible progress had not been made when there had been numerous examples of progress and significant measures adopted by the Government, such as the training of 1,700 mediators from the public and private sectors with the support of the ILO's International Training Centre in Turin.

He had noted the conclusions and would not take up more of the Committee's time.

The Committee noted the oral information communicated by the Government representative as well as the discussion which took place thereafter. The Committee observed with concern that despite the repeated and long-standing comments made by the Committee of Experts on the need to amend the legislation in order to promote free collective bargaining, no tangible progress had yet been made. It noted the Government's assurances that draft legislation was now in preparation in order to applyArticle 4 of the Convention. It recalled the importance it attached to the implementation of this fundamental Convention and urged the Government to provide a detailed report to be examined by the Committee of Experts in order to allow an evaluation of the extent to which real and substantial progress has been made in law and in practice. The Committee recalled that the International Labour Office was at the Government's disposal to provide the technical assistance which might be necessary in order to ensure that legislative obstacles to free collective bargaining in both private and public sectors covered by the Convention are removed.

The Government representative stated that it was exaggerated for the conclusions to state that tangible progress had not been made when there had been numerous examples of progress and significant measures adopted by the Government, such as the training of 1,700 mediators from the public and private sectors with the support of the ILO's International Training Centre in Turin.

He had noted the conclusions and would not take up more of the Committee's time.

Individual Case (CAS) - Discussion: 1991, Publication: 78th ILC session (1991)

A Government representative addressed the situation at the Bank of Brazil in relation to Article 1 of the Convention and the comments made by the United Central Workers' Organisation (CUT). The Bank of Brazil is a mixed enterprise in that the Federal State controls 50 per cent of its shares and the remainder are traded on the stock exchange. This enterprise is regulated by Article 235 of Law No. 6404 of 1974 and is governed by the same laws as apply to free enterprises under article 173(1) of the Federal Constitution. Therefore, general labour laws are applicable at the Bank of Brazil. As concerns the observation made by the Committee of Experts, the directive issued by the President of the Bank was only a draft, which management was supposed to discuss, as in any enterprise. Following the equivocable and erroneous interpretations of the content of the proposition, the President of the Bank met on 25 June 1990 with representatives of the National Confederation of Credit Institutions' Workers and the National Executive Committee of the Staff of the Bank of Brazil for the purpose of informing those present of the actual meaning of the document in question. The clarifications were sent by telex on 20 and 25 June 1990 to all bank employees. The Director of the Bank of Brazil had at no time any intention of dismissing workers who had been active in the trade union movement; to the contrary, on 25 February 1991 the staff of the Bank elected in a strictly democratic and direct election - with the approval of the Governing Body of the Bank - a union worker and representative of CUT, Mr. Luis Oswaldo Santiago Moreira de Souza, as a full member of the Directing Board of the Bank of Brazil.

The workers of the Bank are represented as a group at the national level by 190 unions, ten federations and one confederation; 185 employees are union spokespersons and 175 are available to the union on a full-time basis with full pay. Moreover, eight employees are available to the union under article 543(1) of the Consolidation of Labour Laws. The accusations made against the Bank of Brazil are wholly without basis, and Article 1 of Convention 98 is respected.

As concerns the observation of the Committee of Experts on the application of Article 4 of the Convention, the speaker addressed himself to the three points raised:

1. The provisions stating that the productivity index may be reduced or eliminated according to "the economic ability" of an enterprise (Art. 11 of Law No. 6708 of 30 October 1979) offers a judge a certain flexibility in setting the above-mentioned index at a level within the economic ability of an employer; it is an exceptional measure inspired by the need to preserve jobs in an enterprise which faces economic difficulties and is not a hindrance to collective negotiations. The Labour Tribunal is tripartite in composition, in accordance with article 113 of the Federal Constitution. In the very few cases where the above-mentioned provision has been applied, it was possible for the employer and trade union nominees on the tribunal to discuss the case with the professional judge in order to clarify the points in contention and influence the final decision.

In demonstrating that there had not been a violation of the Convention, the speaker indicated that Law No. 6708 - specifically, Article 11 - was repealed by subsequent wage legislation. Law No. 8178 of 1 March 1991 established "rules relating to prices and wages"; however, it did not reincorporate the provisions of the previous law and did not bring back into force the repealed provisions.

Law No. 8178 was a result of intense political negotiations. Article 13 of the Law gave the executive until 15 April 1991 to submit to the National Congress draft legislation giving application to article 8 of the Federal Constitution and covering collective bargaining. The draft Law (No. 821 of April 1991) has already been submitted to Congress and must be treated as a priority item in conformity with article 64(1) of the Federal Constitution. In its message to the President (Summary of Motives, No. 035 of 11 April 1991), the interministerial committee charged with the elaboration of the draft specifically insisted upon the supremacy of the collective will and on the promotion of direct agreements between employers and workers through collective bargaining.

In summation: (a) Law No. 6708 was repealed and Article 11 of this repealed Law no longer exists either in Law No. 8178 of 1991 or Law No. 8030 of 12 April 1990; (b) even if this provision was in force it would not inhibit collective bargaining because it is simply a flexibility clause designed to benefit - with a view to preserving jobs - enterprises in financial difficulty; (c) the draft Law No. 821 of April 1991 well illustrates the importance which the government attaches to collective bargaining, as is also reflected by the adoption of Law No. 8178.

2. As concerns Article 623 of the Consolidation of Labour Laws, this provision is not applied - as the Government has already stated in its report of 21 June 1988 - and has not resulted in any case being mentioned in the comment made by CUT. As was stated on 14 March 1991 at the presentation of the National Reconstruction Project, wage policy must be elaborated at the national level by the social partners through collective bargaining. The draft of Law No. 821 completely repealed Title VI of the Consolidation of Labour Laws (including Article 623) and completely revised the collective bargaining system.

3. Concerning Article 12 of Law 6708, the speaker reiterated the comments formulated in paragraph 1; the legislation in question has been repealed. The National Wage Policy Council has not survived the administrative reform undertaken by the President at the beginning of his term. Moreover, the Superiour Labour Tribunal revised its jurisprudence under the terms of Resolution No. 02/90 of 19 December 1990 (Diário de de Justicia,) 14 January 1991, page 110) and annulled Decision No. 280 which provided that a collective agreement concluded without previous consultation with the competent official body would not bind a mixed enterprise.

The speaker concluded by insisting that Law No. 6708 had been repealed and that the draft Law assured the promotion of collective bargaining; the situation in Brazil was in conformity with the spirit and the letter of Articles 1 and 4 of the Convention.

The Workers' members thanked the Government representative for his detailed comments. They wished to point out their view that any holder of 49 per cent of the shares of a bank certainly had substantial influence in its management and that they hoped the Government had not intended to suggest otherwise with respect to its ability to influence the management of the Bank of Brazil.

With respect to Article 4 of the Convention, the Workers' members asked that the Government forward to the Committee of Experts for their review texts of legislation referred to by the Government representative. They expressed concern at the repetitive frequency with which Governments indicated that old laws had been repealed and replaced; they asked that the Government indicate when new laws which had been referred to would be enacted as it appeared that a few had not yet, in fact, been enacted. They also believed it would be useful for draft laws to be sent to the ILO for examination before they were enacted.

The Workers' members observed that, according to the Committee of Experts, the Government had provided no information on any measures taken or machinery used to persuade the social partners to adhere to its economic austerity policy and that the Committee had urged the Government to ensure all measures concerning wage fixing are adopted in the context of a dialogue between the Government and the social partners, so that an agreement on wage-fixing policy may be reached between the sectors concerned. The Workers' member understood the Government representative, however, to say that a number of bodies had been consulted with respect to adherence to the Government's economic austerity policy and an agreement on wage fixing policy. They asked that the Government member confirm this point and reiterated the need for the Government to send full texts of laws, enacted or envisaged, so that the Committee as well as the Committee of Experts could have a fuller appreciation of application given to the Convention.

The Employers' members endorsed what the Workers' members had said with respect to this case. They expressed concern, however, at the fact that section 623 of the Consolidation of Labour Laws remained in force althought it was not, in fact applied. This, they felt, was always a problem and strongly urged the Government to consider revoking the provision if, in fact, it was not used. The Employers' members generally observed that it was not clear how current or past legislation fit into the observation of the Committee of Experts; based upon the information in the Experts' report and that provided by the Government policy would make the recovery of the value of wages lost by inflation difficult or impossible. They noted that labour costs could contribute to a continuation of inflation particularly where wage increases were not related to productivity gains. The Government representative had indicated that a productivity index of some sort had been used but the Employers' members wondered whether this index was used to limit the inflationary effect of wages not linked to productivity. Some clarification by the Government representative was needed.

The Workers' member from Sri Lanka said that he thought he heard the Government representative say that Decree No. 229 of 28 February 1967 which confers extensive powers to the authorities to cancel collective agreements or arbitration awards that are not consistent with the rules set out by the Government's wage policy has never been applied. In such a case he wondered why it was necessary to continue to have the Decree in force and whether the Government could not consider repealing it.

The Government representative assured the Workers' members that in setting out the percentage of participation of the Federal Government in the Bank of Brazil he had not intended to suggest that the Government did not influence its management; the directive of the Bank of Brazil which was the subject of the CUT observation could not, however, be considered an Act of State, but was rather the Act of a private enterprise. As concerned the frequency of legislative modifications, as had already been stressed, the draft legislation on collective bargaining was aimed precisely at putting an end to the matter. Law No. 8178 of March 1991 was the only text in force in the area of wage policy; moreover, the National Congress was currently examining a draft Law on collective bargaining. As regards the repeal of article 623 of the Consolidation of Labour Laws, it was included in the above-mentioned draft Law. The productivity index as used in Brazilian labour law reflected a real wage increase in relation to the activities of an enterprise during a financial period. The speaker concluded by assuring that the Government would send all the available texts to the Committee of Experts.

The Government representative stressed that as concerns the problems which remain which had been mentioned in the Committee's conclusions the Government had attempted to show that these problems no longer existed. The Government was merely waiting to send to the Committee of Experts proof of the statements which had been made in the Committee.

The Committee took note the information supplied by the Government and the discussion which took place in the Committee. The Committee also noted the report of the Committee of Experts and the serious problems that persist in particular as regards the need to remove obstacles to wage negotiation and conditions of employment. The Committee was aware of the seriousness of the economic and financial situation of the country for many years now. Nevertheless it recalled that any economic stabilisation policy should be the result of consultation and not force or constraint. The Committee expressed the firm hope that the Government would be in a position to indicate in its next report to the Committee of Experts which measures have been taken and in particular with respect to submission of a Bill to Congress so as to bring the country's law and practice into conformity with the requirements of the Convention.

The Government representative stressed that as concerns the problems which remain which had been mentioned in the Committee's conclusions the Government had attempted to show that these problems no longer existed. The Government was merely waiting to send to the Committee of Experts proof of the statements which had been made in the Committee.

Individual Case (CAS) - Discussion: 1989, Publication: 76th ILC session (1989)

The Government representative of Brazil stated that his country was in a transition period, and the promulgation of the new Federal Constitution had introduced great innovations in the national legal order. The Congress was now drawing up specific legislation that would permit implementation of the Constitution. The Ministry of Labour was now preparing studies and Bills with the aim of speeding up the process of adapting the national legislation to new constitutional standards, in an effort to overcome the obstacles to full implementation of the Convention. It had to be noted that the Constitution represented great progress on a number of points: a trade union member could not be dismissed, except in case of serious misconduct, from the time of presenting his or her candidacy for trade union office until, in case of election, even as an alternate, the expiry of one year from the end of his or her term, as established in the legislation (article 8, paragraph VIII of the Constitution); there was recognition of collective agreements and awards (article 7, paragraph XXVI of the Constitution): civilian public servants were granted the right to freedom of association and the right to strike (article 37, paragraphs VI and VII of the Constitution); article 173, paragraph I of the Constitution guaranteed employees of public enterprises, mixed economy enterprises and others the social rights referred to in article 7 of the Constitution, including recognition of collective labour agreements and awards. It could be concluded that negotiation by representative organisations was fully ensured. In addition, freedom of collective bargaining was provided for in the Bill on wage policy that had been approved by Congress and was now under consideration by the President of the Republic. This Committee should also be informed that the Interministerial Council on Wages in State Enterprises (CISE) was playing an advisory role as an employer in cases in which the Government held more than 50 per cent of the enterprise capital. This Council was an advisory body for the management of state enterprises and was not an instrument that impeded collective bargaining.

The Government representative conceded that there still were a few obstacles to the full implementation of the Convention in the legislation and in practice, but the Government was making every effort possible to overcome them. There was an agreement regarding technical co-operation between Brazil and the ILO. Two officials from the Ministry of Labour had recently had internships on the application of standards, and this year the ILO Regional Adviser on Standards would be visiting Brazil. A request had been made for him to be accompanied by a legal expert to provide advice to national experts in drawing up Bills containing provisions which would be fully compatible with ILO Conventions.

The Worker member of Brazil stated that the present Committee should not limit itself to an analysis of legal terms which in any event were not implemented in practice. He referred in particular to the observation of the Committee of Experts on Decree No. 2425 of 7 April 1988, which provided in its section 7 that public enterprises, mixed-economy enterprises and private enterprises subsidised by the State or holding concessions from public services, could not conclude collective agreements or accords unless those pacts were in line with the decisions adopted by the Interministerial Council on Wages in State Enterprises (CISE). In this regard he stated that in practice, these enterprises first asked permission from the CISE, then negotiated and finally returned to the CISE, whose usual practice was to invalidate clauses in already negotiated agreements.

In relation to the right to strike, the speaker referred to the observations of the Committee of Experts on the right of workers to freely negotiate their conditions of employment. Those observations had mentioned CUT. It was necessary to clarify that the CUT now represents around 15 million workers with approximately 5 million members in local unions. He stated that the CUT had refused to engage in discussions on a social accord to fight inflation, because it was the CUT's position that Brazilian workers had nothing left to give up in material terms, since the statutory monthly minimum wage was the equivalent of approximately US$40. The CUT had also felt that values other than material ones - such as the right to strike - were values that could not be subject to bargaining. The CUT proposed to the Government and to the employers that a collective labour agreement be negotiated to take the place of current individual agreements; the bargaining should make up for the wage cuts occasioned by economic measures and by the absence of wage protection standards. The speaker indicated that at the moment wages had declined some 40 per cent and that he was astounded that in his country employers were maintaining that the compensation for the erosion in wages should not be more than 6 per cent, a proposal which the Government had accepted. This had caused the largest strike ever in Brazil, in which 30 million workers had participated; instead of negotiating with the workers as had been hoped, the Government introduced Temporary Order No. 50 which dramaticaly curtailed the right to strike, thus violating the Constitution and the provisions of the Convention. This restriction can only be compared to those which existed in three countries with very special historical circumstances: Hitler's Germany, Franco's Spain, and Stroessner's Paraguay. Brazil was one of the few countries in the world that had not yet ratified Convention No. 87, and there had often been repression of strikes by the military, as in November 1988, resulting in the death of three workers in Vuelta Redonda. In addition to this it is necessary to mention the detention of trade union leaders because of the strike and the dismissal of more than 300 trade union leaders over the past two years. The assassination of the trade union leader Chico Méndez was one of the many events of this type.

The speaker concluded by calling for the assistance of the present Committee to vindicate the legitimate rights of workers, in particular, the rights to strike and to bargain collectively; it was unacceptable that a country considered to have the eighth largest economy in the Western world continued to pay around 4 per cent of its gross domestic product for foreign debt servicing while at the same time having some of the most degrading social conditions known to modern history.

The Workers' members shared the opinion of the Employers' members' that Brazil was going through a transition period in relation to collective bargaining and freedom of association. It was necessary to recognise the existence of trade unions and to accept representative trade union organisations. If those organisations were not recognised for purposes of collective bargaining, they were being compelled to strike merely to have the right to negotiate; this was regrettable, since strikes should only be used as a last resort in difficult situations. The Workers' members took up three important points from the statement made by the Government representative: (1) improvement of protection against illegal dismissal of trade union representatives; (2) restrictions on the freedom of association rights of public servants in violation of Convention No. 98; and (3) limitation on the right to strike in sectors where there had been no such limits.

The Workers' members recalled their general approach regarding bargaining and the right to strike. Employers and workers from all quarters had to be brought together in an attempt to remedy the serious situation and to see to it that it was not only the workers who bore the brunt of economic adjustment. The Workers' members therefore called for solutions to be sought with the central trade union organisations that were truly representative of the vital forces in the country, in regard to freedom of association rights.

The Employers' members recalled that 37 years had passed since Brazil had ratified this Convention. There were still some fundamental problems with regard to compliance, but the picture painted by the Committee of Experts' report was not entirely negative. That Committee had noted with satisfaction a law protecting trade union officials from dismissal except in case of a serious offence. The Employers' members also noted that the Government appeared ready to enact a Bill to guarantee the right of association and the right to strike for persons employed directly or indirectly by the public administration. On the other hand, workers' right to freely negotiate their terms and conditions of employment (as provided by Article 4 of the Convention) was limited by wage and price controls and by governmental powers to cancel collective bargaining agreements and arbitration awards that were inconsistent with those controls. There was also work to be done with respect to the rights of workers in certain public sector enterprises to negotiate freely their terms and conditions of employment. The Employers were encouraged by the Government's stated wish to avail itself of technical co-operation to resolve remaining problems.

The Government representative of Brazil wished to clarify that Temporary Order No. 50 on the exercise of the right to strike was only valid for 30 days, and thus had expired. Also, Congress was drawing up a Bill which would regulate only the exercise of the right to strike in relation to essential services which could involve a true risk for the population. In connection with the accusations of repression of workers and violation of freedom of association, the Government of Brazil had supplied all the information required, and the matter had been thoroughly discussed in the Governing Body. It was important to note that since the time of the military dictatorship, the great trade union organisation CUT had been recognised and had now been called upon to participate along with other social partners in meetings organised by the Government.

The Worker member of Brazil wished to clarify that this was the first time the CUT had been included in the Brazilian delegation to this Conference, thanks to the efforts of the Ministry of Labour. He hoped this would be so every year and that the traditional method of balloting between the old official confederations would be abandoned. He also wished to state that while Temporary Order No. 50 was no longer in force, it had been reissued in the form of Temporary Order No. 59, which contained the same terms and was still in force.

The Committee took note of the Committee of Experts' report and of the information supplied by the Government representative. The Committee welcomed the fact that some progress had been achieved relative to the protection of freedom of association. It noted, however, that problems remained regarding the free fixing of wages and the right to collective bargaining for employees of the State and certain public sector enterprises. The Committee expressed the hope that the Government would soon take the necessary measures to apply the Convention fully in law and practice. It hope that the possibility for tripartite dialogue at the national level would be put to use in this regard and that the Government would be able to indicate progress in its next report.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

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Article 4 of the Convention. Promotion of collective bargaining. Criteria for determining the trade union organization entitled to bargain collectively in the event of a dispute over representation between several trade unions. The Committee recalls that, based on a referral by the Committee on Freedom of Association (Case No. 3219), it requested the Government to provide information on the measures taken to ensure that disputes over representation are settled on the basis of objective and pre-established criteria for representativeness, taking due account of the wishes of the workers concerned.

The Committee notes that the Government confines itself to recalling that: (i) in the context of the system of trade union unity in force in the country, the Ministry of Labour limits itself to registering trade unions without interfering in trade union activities; and (ii) disputes that may arise between unions are resolved either through conciliation and mediation or through the courts. The Committee also notes that, in their respective observations: (i) the National Confederation of Industry provides indications similar to those of the Government; and (ii) the Single Confederation of Workers (CUT) emphasizes the particular importance of this subject being addressed by the working group created by Decree No. 11,477 of April 2023, the objective of which is to draw up proposals to restructure industrial relation and promote collective bargaining.

The Committee observes that none of these communications makes reference to the criteria used by the courts to resolve disputes relating to representation that may arise in the context of the system of single trade union nor, in this context, to the manner in which account is taken of the real presence of unions seeking to obtain the monopoly of trade union representation. Emphasizing once again the importance, under Articles 2 and 4 of the Convention, of organizations representing workers in the framework of collective bargaining being independent and representative, the Committee requests the Government, in consultation with the social partners, to take the necessary measures to ensure that, within the context of the system of single trade union currently in force in the country, disputes over representation are settled on the basis of objective and pre-established criteria for representativeness, taking due account of the wishes of the workers concerned. The Committee requests the Government to provide information on any progress achieved in this regard.

Duration of collective agreements and accords. The Committee recalls the ongoing dialogue with the Government concerning section 614(3) of the Consolidation of Labour Laws which, since the 2017 legislative reform, has set a maximum limit of two years for the duration of collective agreements and accords and has prohibited the inclusion in such agreements and accords of clauses on the maintenance of their effects in the event of their non-renewal. The Committee previously invited the Government to engage in consultations with the representative organizations of employers and workers on the content of section 614(3) of the Consolidation of Labour Laws.

The Committee notes that the Government refers to a ruling by the Supreme Federal Court of 30 May 2022 (ADPF No. 323) considering that it was not possible to prolong the effects of collective agreements and accords once their date of expiry has been reached. However, the Committee notes that the Government has not provided further information on the submission of the content of section 614(3) of the Consolidation of Labour Laws to social dialogue. Recalling once again that the determination of the duration of collective agreements and their effects by the parties is covered by the principle of free and voluntary collective bargaining promoted by the Convention and that any derogations from this rule should in so far as possible reflect tripartite agreement, the Committee once again invites the Government to engage in consultations with the representative organizations of employers and workers on the content of section 614(3) of the Consolidation of Labour Laws. The Committee requests the Government to provide information on this subject.

Act No. 14.370 of 2022 creating a voluntary service programme. The Committee notes the observations of the CUT, according to which: (i) the programme is intended for persons aged between 18 and 29 years of age, as well as persons over 50 years of age and persons with disabilities; (ii) municipal authorities may engage workers for a maximum duration of 22 hours a week to undertake activities of ‘public interest’ in exchange for compensation equivalent to half the minimum wage, without them benefiting from most forms of protection afforded by the labour legislation; and (iii) these workers will not be covered by any collective agreements and will not be able to organize in trade unions. The Committee also notes the Government’s reply, according to which: (i) the programme is intended to assist in the productive inclusion of vulnerable persons and to reduce the social and labour market impact of the crisis arising due to the COVID-19 pandemic; and (ii) the programme, established for a temporary period of 24 months, has not yet entered into force as the adoption of the implementing texts is still pending. The Committee notes these various indications and requests the Government to provide information on: (i) the number of persons concerned by the programme once it has entered into force; and (ii) the point raised by the CUT concerning the access of these persons to collective labour rights.

General Act on data protection. Sharing of information and collective bargaining. The Committee notes the observations of the CUT, according to which the General Act on data protection (No. 13,709 of 2018) provides the basis for court rulings denying the provision to trade unions of information on workers, even when the sharing of such information is envisaged in collective accords. The Committee notes that, according to the CUT, the sharing of such information is necessary both so that unions can assess the due application of the collective agreements that are in force and to be able to engage in meaningful collective bargaining. Recalling that the Collective Bargaining Recommendation, 1981 (No. 163), which supplements Convention No. 154, ratified by Brazil, indicates in Paragraph 7 that measures adapted to national conditions should be taken, if necessary, so that the parties have access to the information required for meaningful negotiations, the Committee requests the Government to provide its comments on the CUT’s observations.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

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The Committee notes the observations of the National Confederation of Industry (CNI), received on 31 August 2023 and also forwarded by the Government with its report. It also notes the observations of the Single Confederation of Workers (CUT), transmitted by the Government in its report. The Committee notes that these observations and the corresponding replies by the Government concern matters examined in the present comment.

With reference to the 2022 allegations by the CUT in relation to Act No. 14.437/2022 on the implementation by the executive authorities of alternative labour measures and an emergency programme for employment and income maintenance with a view to responding to the social and economic consequences of a state of public calamity, the Committee notes the Government’s reply and refers to its 2020 comments on Act No. 14.020 in view of the similarity in content of the two instruments. The Committee observed on that occasion that the Act was not intended to set aside collective agreements and accords that are in force, but to establish a temporary system for reduced activity and income compensation that can be set in motion by individual agreement or collective accord. The Committee therefore emphasized the importance of promoting the full utilization of collective bargaining machinery as a means of achieving balanced and sustainable solutions in a time of crisis.

Application of the Convention and respect for civil liberties. In its previous comments, the Committee noted with deep concern the allegations of the International Trade Union Confederation (ITUC) concerning the murders of three trade union leaders and members in 2020 as well as several cases of death threats against other union leaders.

The Committee notes that the Government confines itself to indicating that: (i) there is no legal provision conferring upon the Ministry of Labour powers in criminal matters to undertake investigations or punish the instigators of violations against trade union leaders; and (ii) it is necessary to ascertain the progress made by the criminal justice or administrative procedures in that regard. The Committee also notes the observations of the CUT in which it deplores the Government’s reply and calls on it to provide full information on the murders in question.

The Committee notes with regret the absence of information from the Government on the progress made in the investigations of the crimes alleged by the ITUC and the protection measures adopted for trade union leaders who have received death threats. Emphasizing that compliance with ratified Conventions is incumbent on all the competent authorities, the Committee is bound to recall that the rights set out in the Convention, and particularly those respecting free and voluntary collective bargaining, can only be exercised in a climate free from violence and threats. The Committee once again urges the Government to ensure that the necessary measures are taken to: (i) identify and punish the perpetrators and instigators of the alleged crimes; and (ii) ensure effective protection for the trade union leaders whose physical safety is under threat. The Committee urges the Government to provide detailed information on this subject without delay.

Article 1 of the Convention. Adequate protection against anti-union discrimination. The Committee recalls that, while noting the existence of constitutional and legislative provisions that provide general protection for trade union activities, it has been requesting the Government for many years to take measures to set out explicitly in the legislation specific sanctions that are sufficiently dissuasive against all acts of anti-union discrimination. Noting the absence of new information on this subject and recalling the essential importance of ensuring effective protection against anti-union discrimination, the Committee is therefore bound to reiterate its request and hopes that the Government will be in a position to report tangible progress in this regard.

Article 4. Promotion of collective bargaining.Relationship between collective bargaining and the law. In its previous comments, the Committee requested the Government, in consultation with the representative social partners, to take the necessary measures to amend sections 611-A and 611-B of the Consolidation of Labour Laws (CLT) so as to specify more precisely the situations in which clauses derogating from the legislation may be negotiated, as well as the scope of such clauses. In this regard, the Committee took note of the concerns expressed in 2021 by the ITUC, the CUT and the National Confederation of Workers in Teaching Establishments (CONTEE) with regard to the implementation of these provisions in the context of the economic crisis provoked by the COVID-19 pandemic which could in their view result in workers being obliged to accept, through collective bargaining, a sharp deterioration in their conditions of work and employment.

The Committee notes that the Government reaffirms that: (i) the primacy of collective bargaining over the legislation introduced by Act No. 13.467 of 2017 contributes to reinforcing confidence in bargaining mechanisms in accordance with the Convention and the Federal Constitution of 1988; (ii) by guaranteeing that the rights of workers set out in the Constitution (section 611-B of the CLT) cannot be derogated through collective bargaining, the legislator sought to clarify the scope of collective bargaining while conserving the fundamental rights of workers with constitutional standing; and (iii) the Supreme Federal Court confirmed in a ruling of June 2022 the validity, irrespective of the specific compensatory benefits outlined, of collective agreements which limit or restrict certain labour rights where they are not guaranteed by the Constitution.

The Committee also notes the information provided by the Government on the number of collective agreements and accords concluded in the country, according to which: (i) between January 2019 and June 2023, there were 181,838 registered collective instruments, of which 149,096 were collective labour accords (concluded at the level of one or several enterprises) and 32,742 were collective labour agreements (concluded at a broader level, such as a sector of activity or an occupation); (ii) in 2022, some 41,742 collective accords and agreements were concluded, in comparison with the 47,672 concluded in 2017. Finally, the Government reports the adoption of Decree No. 11.477 of 6 April 2023 creating an inter-ministerial working group responsible for preparing a proposal for the restructuring of industrial relations and the promotion of collective bargaining.

The Committee notes that the observations of the CNI confirm the information provided by the Government, with the employers’ organization adding that since the entry into force of the reform, the number of court actions challenging the validity of the clauses of collective agreements has fallen by 80 per cent. The Committee notes the affirmation by the CUT that according to the analysis of the Inter-union Department for Statistics and Socio-economic Analyses: (i) collective bargaining has become more difficult since the entry into force of the 2017 reform, resulting in a decrease in the number of collective labour agreements and accords and greater discretionary power for enterprises; (ii) it is undeniable that the changes introduced by the labour reform, and particularly those set out in section 611-A of the CLT, are in violation of ILO Conventions Nos 98 and 154; and (iii) nothing has been done by the Government to give effect to the Committee of Experts’ comments in this regard, while the commission established in 2023 to restructure industrial relations and promote collective bargaining has not currently included in its work plan action to follow up the Committee of Experts’ comments.

The Committee notes the different information provided by the national tripartite constituents and notes the statistical indications that the total number of collective instruments concluded has fallen by 12.5 per cent since 2017 (the number of collective agreements concluded is stable, while the number of collective accords concluded at the enterprise level has fallen by 17.6 per cent). The Committee also notes the lack of action taken by the Government for the amendment of sections 611-A and 611-B of the CLT. The Committee recalls that it has considered that, while targeted legislative provisions covering specific aspects of conditions of work and providing, in a circumscribed and reasoned manner, for the possibility of their replacement by means of collective bargaining may be compatible with the Convention, a legal provision providing for a general possibility to derogate from the protective provisions of labour legislation by means of collective bargaining would be contrary to the purpose of promoting free and voluntary collective bargaining established in Article 4 of the Convention. While noting the limits already set out in section 611-B of the CLT, the Committee once again requests the Government, in consultation with the representative social partners, to take the necessary measures to amend sections 611-A and 611-B of the CLT so as to specify more precisely the situations in which clauses derogating from the legislation may be negotiated, as well as the scope of such clauses. The Committee requests the Government to provide information on the progress made in this regard. The Committee also requests the Government to continue providing information on developments in the number of collective agreements and accords concluded in the country, including data on the agreements and accords which contain clauses derogating from the legislation, with an indication of the nature and scope of such derogations.

Relationship between collective bargaining and individual contracts of employment. The Committee recalls that, by virtue of Act No. 13.467 of 2017, section 444 of the CLT has the effect that, in the domain covered by section 611-A of the CLT, the clauses of individual contracts of employment of employees who have a higher education diploma and who receive a salary that is at two times higher than the ceiling for benefits under the general social security scheme prevail over the content of collective agreements and accords, including where the clauses of individual employment contracts are less protective. The Committee recalls in this regard that: (i) the present Convention is fully applicable to the workers covered by section 444 of the CLT insofar as, under the terms of Articles 5 and 6, only members of the armed forces and the police (Article 5) and public servants engaged in the administration of the State (Article 6) may be excluded from its scope of application; and (ii) as explicitly set out in Paragraph 3 of the Collective Agreements Recommendation, 1951 (No. 91), the obligation to promote collective bargaining set out in Article 4 of the Convention requires that the individual negotiation of the terms of the contract of employment cannot derogate from the rights and guarantees provided in the applicable collective agreements, on the understanding that contracts of employment can always set out more favourable terms and conditions of work and employment. Noting the absence of information in this regard, the Committee once again requests the Government, after consultation with the representative social partners concerned, to take the necessary measures to ensure the conformity of section 444 of the CLT with the Convention. The Committee requests the Government to provide information on any progress achieved in this respect.

Scope of application of the Convention. Autonomous and self-employed workers. The Committee recalls that, following the extension of the definition of self-employed workers resulting from new section 442-B of the CLT, it commenced a dialogue with the Government concerning the access of these workers to the right of collective bargaining. In this regard, the Committee: (i) welcomed the Government’s indications that, under the terms of section 511 of the CLT, which recognizes the right to organize of autonomous workers, these workers are also covered by the right to engage in collective bargaining; (ii) noted the indication by the CUT that, although section 511 of the CLT recognizes the right of autonomous workers to organize, this provision does not however grant them the possibility to have access to collective bargaining machinery, particularly in view of the absence of a counterpart and, in practice, the fact that the transition from the status of employee to that of autonomous worker under the terms of section 442-B would have the effect of excluding the workers concerned from the coverage of the collective agreements in force; and (iii) noted the Government’s indication that the emergence of various non-standard forms of work is an additional challenge for collective bargaining in all countries, particularly in view of the low unionization rate. In light of these considerations, the Committee invited the Government to: (i) provide examples of collective agreements or accords negotiated by organizations representing autonomous or self-employed workers or, at the least, of which the scope of application would cover these categories of workers; and (ii) engage in consultations with all the parties concerned with the objective of identifying appropriate modifications to be introduced into collective bargaining machinery to facilitate its application to autonomous and self-employed workers. Noting the absence of information from the Government on this subject, the Committee reiterates its previous requests to the Government and hopes that it will provide specific information on any collective agreements covering these categories of workers and on the holding of the requested consultations with the social partners,

Relationship between the various levels of collective bargaining. The Committee recalls that, under the terms of section 620 of the Consolidation of Labour Laws, as amended by Act No. 13.467, the conditions established in collective labour accords (which are concluded at the level of one or more enterprises) always prevail over those contained in collective labour agreements (which are concluded at a broader level, such as a sector of activity or an occupation). The Committee therefore recalled that, in accordance with Article 4 of the Convention, collective bargaining must be promoted at all levels and that, in conformity with the general principle set out in Paragraph 3(1) of Recommendation No. 91, collective agreements should bind the signatories thereto and those on whose behalf the agreement is concluded. Noting the absence of information provided by the Government in its report on the relationship between the various levels of collective bargaining, the Committee once again requests the Government to: (i) indicate the manner in which respect for the commitments made by the social partners in the framework of agreements concluded at the level of the sector of activity or occupation is guaranteed; and (ii) provide information on the impact of section 620 of the CLT on recourse to the negotiation of collective agreements and collective accords, and on the overall coverage rate of collective bargaining in the country.

Article 4. Promotion of free and voluntary collective bargaining. Subjection of collective agreements to financial and economic policy. The Committee recalls that for many years it has been emphasizing the need to repeal section 623 of the CLT, under the terms of which the 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.

In its more recent comments, after noting the Government’s indication that section 623 of the CLT, adopted in 1967, is not in accordance with the objectives of the Constitution of 1988 and is therefore no longer applied, the Committee emphasized the need to remove from the statutes this provision that is contrary to the principle of free and voluntary collective bargaining set out in Article 4 of the Convention. Once again noting the absence of new information from the Government, the Committee again requests it to take the necessary measures to repeal section 623 of the CLT and to provide information in its next report on any measures adopted in this regard.

The Committee trusts that the inter-ministerial working group created in April 2023 to draw up a proposal for the restructuring of industrial relations and the strengthening of collective bargaining will take fully into account the various points raised and recommendations made in this comment and that the Government will soon be in a position to report tangible progress in this respect.

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

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 4 of the Convention. Promotion of collective bargaining. Criteria for determining the trade union organization entitled to bargain collectively in the event of a dispute over representation between several trade unions. The Committee notes that the Committee on Freedom of Association (CFA) has referred to it the legislative aspects of Case No. 3219 (400th Report of the CFA, October 2022, paragraphs 187-205). The Committee notes that in the context of this case, the CFA (i) observed that the Brazilian system of collective labour relations, governed by the single trade union principle, does not prevent disputes over representation from arising when two trade union organizations claim to be the best qualified to represent a given category of workers; (ii) noted that the Government’s indication that national legislation does not contain criteria for determining representativeness that would make it possible to settle the representation disputes that may arise between several trade union organizations; and (iii) observed that this absence may hinder the right of workers to be represented in collective bargaining by the trade union of their choice. Recalling the importance that, under Articles 2 and 4 of the Convention, organizations representing workers in the framework of collective bargaining should be independent and representative, the Committee requests the Government to provide information on the measures taken to ensure that disputes over representation shall be settled on the basis of objective and pre-established criteria for representativeness, taking due account of the wishes of the workers concerned.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the observations of the National Confederation of Workers in Teaching Establishments (CONTEE), the International Trade Union Confederation (ITUC) and the Single Confederation of Workers (CUT), received respectively on 28 March, 1 and 2 September 2022, and which concern matters examined by the Committee in the present comment.

The Committee also notes the joint observations of the International Organisation of Employers (IOE) and of the National Confederation of Industry (CNI) received on 30 August 2022 and which also concern matters examined by the Committee in the present comment.

The Committee recalls that in its previous comment, it requested the Government to respond to the observations submitted in 2021 by the ITUC, the CUT and the CONTEE which contain, in particular, allegations relating to: (i) the assassination of three trade union leaders in 2020 and several cases of death threats; and (ii) increased violations of collective bargaining rights in the context of the economic crisis resulting from the COVID-19 pandemic.

In this regard, the Committee notes the Government’s comments in response to the various observations submitted. Concerning the Government’s response to the 2021 allegations by the CUT on the adoption of emergency measures in the context of the COVID-19 pandemic which may have violated the right to collective bargaining, through the introduction of Provisional Measure 1045/2021 (PM 1045/2021), the Committee notes the Government’s indication that PM 1045/2021 is no longer in force. However, the Committee also notes from the 2022 observations made by the CUT that certain measures and provisions contained in PM 1045/2021 that were criticized in the Committee’s previous comment have been reintroduced in positive law through Acts Nos. 14.437/2022 and 14.370/2022. The Committee requests the Government to provide its comments in this respect.

Application of the Convention and respect for civil liberties. In its previous comments, the Committee noted the ITUC’s allegations relating to the assassination of three trade union leaders and trade unionists in 2020, as well as several cases of death threats against other trade union leaders and had requested the Government to provide its comments in this regard. The Committee notes with regret that the Government confines itself to indicating in a general manner that Brazilian legal system is equipped with the necessary mechanisms to prosecute and sanction possible perpetrators of acts of anti-union violence, without giving any information on the different acts to which the ITUC refers. In this regard, the Committee notes with deep concern the following allegations made by the ITUC: (i) the assassination on 28 February 2020 of Mr Paulo Silva Filho, member of the Federation of Rural Workers and Family Farmers of the State of Pará (FETAGRI-PA); (ii) the assassination on 23 July 2020 of Mr José Diaz Hamilton de Moura, President of the Union of Drivers and Goods Transport Workers, Transport Logistics and Specialized Enterprises of Belo Horizonte and the region (SIMECLODIF); (iii) the assassination on 6 November 2020 of Mr João Inácio da Silva, President of the Workers’ Cooperative of Montes Belos; (iv) the death threats received in 2020, and related to their trade union activities, by Mrs Tamyres Filgueira, coordinator of the Union of Technical and Administrative Workers of the UFRGS, UFCSPA and IFRS (ASSUFRGS); Mr Aldo Lima, President of the Union of Heavy Goods Drivers of Recife and by the union leaders of the Union of Oil Workers of São José dos Campos and its region. Recalling that the rights contained in the Convention, in particular those relating to free and voluntary collective bargaining, can only be exercised in a climate free from violence and threats, The Committee urges the Government to ensure that the necessary measures are taken to: (i) identify and punish the perpetrators and instigators of the alleged crimes; and (ii) ensure effective protection for the trade union leaders whose bodily integrity is under threat. The Committee requests the Government to provide information in this regard without delay.

Article 4. Promotion of collective bargaining.Application of the provisions of Act No. 13.467 regarding collective bargaining in the context of the COVID-19 pandemic. The Committee recalls that in its previous comments it had asked the Government to make, in consultation with the representative social partners, a certain number of amendments to the provisions of Act No. 13.467 of 2017 related to collective bargaining, in particular concerning the possibility to derogate through collective bargaining a substantial number of protective provisions of the labour legislation, and those provisions allowing, for certain categories of workers, the setting aside, through individual labour contracts, of the protective clauses of collective agreements. In their 2021 observations, the ITUC, the CUT and the CONTEE expressed concern at the implementation of these provisions in the context of the economic crisis provoked by the COVID-19 pandemic, which could, in their view, result in workers being obliged to accept a steep deterioration in their conditions of work and employment. The Committee notes the Government’s indications, which coincide with those of the CNI and the IOE to the effect that: (i) since the 2017 reform, the number of collective agreements concluded has remained relatively stable, going from 47,572 in 2017 to 42,303 in 2019 (-11 per cent), falling to 36,011 in 2020, as a result of the COVID-19 pandemic, and going back up to 41,951 agreements concluded in 2021; (ii) the 21 per cent fall in unionization underlined by the ITUC cannot be imputed to the 2017 reform, but is part of a long-term phenomenon also visible in numerous other countries; (iii) the primacy of collective bargaining over labour legislation (except for constitutionally protected rights) – recognized as constitutional by the Supreme Federal Court by a judgment of June 2022 – allowed the social partners to decide together on the best approaches to the crisis, according to their specific situations, and to guarantee the legal security of the agreements concluded; and (iv) the economic and social effects of the crisis were greatly reduced by the special protection measures taken by the Government.

The Committee duly notes the elements provided by the Government at the same time noting that the 2022 observations of the ITUC, CUT and the CONTEE maintain similar allegations to those of previous years. While reiterating its previous comments relating to the need to revise the different aspects of Act No. 13.467 cited above, in order to ensure their compliance with Article 4 of the Convention, the Committee requests the Government to continue to communicate statistics on the number of collective agreements concluded, specifying their level (enterprise or sector), the sectors concerned, and the number of workers covered. The Committee also requests the Government to provide information on the frequency of agreements that contain clauses derogating from the legislation, giving details of the nature and scope of such clauses.

Finally, the Committee notes the elements provided by the Government regarding the other points examined by the Committee in its previous comments and concerning the application of Articles 1 and 4 of the Convention. The Committee notes that the positions taken, and the information provided are essentially the same as those provided by the Government in its previous reports. The Committee, while reiterating its previous comments, will examine these matters in the framework of the regular reporting cycle and requests the Government to provide all relevant information in this regard.

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

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the National Confederation of Workers in Teaching Establishments (CONTEE), the International Trade Union Confederation (ITUC) and the Single Confederation of Workers (CUT), received on 14 May and 1 and 2 September 2021, respectively.

The Committee notes that these observations contain, inter alia, allegations relating to: (i) the assassination of three trade union leaders in 2020 and several cases of death threats; and (ii) the worsening of violations of the right to collective bargaining in the context of the economic crisis resulting from the COVID-19 pandemic.

Noting the seriousness of some of the allegations contained in the above-mentioned observations, the Committee considers it necessary to be able to examine the corresponding replies of the Government in 2022. The Committee therefore requests the Government to provide its comments on the above-mentioned observations of the trade unions.

[The Government is asked to reply in detail to the present comments in 2022.]

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 4 of the Convention. Promotion of collective bargaining. Duration of collective agreements and accords. Noting that section 614(3) of the Consolidation of Labour Laws (CLT) sets a maximum limit of two years for the duration of collective agreements and accords and prohibits the inclusion in such agreements and accords of clauses on the maintenance of their effects in the event of their non-renewal, the Committee previously emphasized that the determination of the duration of collective agreements and their effects by the parties is covered by the principle of free and voluntary collective bargaining promoted by the Convention and that any derogations from this rule should in so far as possible reflect tripartite agreement. On this basis, the Committee invited the Government to engage in consultations with the representative organizations of employers and workers concerning the content of section 614(3) of the Consolidation of Labour Laws. In this regard, the Committee notes, on the one hand, the reiterated views expressed by the Government and the employers’ organizations, National Confederation of Industry and the National Confederation of Transport, which indicate that the duration of collective agreements is not envisaged by the Convention and that the limitation of their duration has the objective and effect of promoting as much as possible the regular exercise of collective bargaining. The Committee notes, on the other hand, the persistent opposition to section 614(3) of the Consolidation of Labour Laws expressed by the Single Confederation of Workers and the New Workers Trade Union Confederation. The Committee once again invites the Government to provide information on the consultations held with the representative organizations of employers and workers on the content of section 614(3) of the Consolidation of Labour Laws with a view to seeking tripartite agreement on the regulation of the duration of collective agreements and accords.

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee has updated its examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year, as well as the information at its disposal in 2019.

The Committee takes note of: (i) the observations of the National Confederation of Industry (CNI) received on 24 September 2020, in which it reiterates its previously expressed position on matters examined by the Committee in this comment; and (ii) the observations of the International Organization of Employers (IOE) received on 1 October 2020, in which the IOE reiterates its observations from the previous year and supports the observations of the CNI.

The Committee also notes: (i) the joint observations of the Single Confederation of Workers (CUT), the Confederation of Brazilian Trade Unions (CSB), and Union Forces, received on 12 June 2020; (ii) the observations of the International Trade Union Confederation (ITUC), received on 16 September 2020; (iii) the observations of Public Services International (PSI), received on 29 September 2020; (iv) the observations of the CUT, received on 1 October 2020; and (v) the observations of the National Confederation of Education Workers (CNTE), received on 1 October 2020. The Committee notes that these observations relate to subjects examined in the present comment, as well as allegations of violations of the Convention in practice, concerning which the Government has provided its comments. In this regard, the Committee notes, in the first place, the observations of the ITUC and CUT denouncing a ruling of the Higher Labour Court of September 2020 suspending the postal enterprise collective agreement and the Government’s response that there has been no violation of collective bargaining, but merely a ruling by the higher court setting aside the decision by the court of first instance issued in 2019 in the context of the ongoing collective dispute in that sector. In light of the above, the Committee requests the Government to continue providing information on the continuation of collective bargaining in the postal enterprise. The Committee also notes the allegations by the ITUC concerning acts of violence and intimidation by the police against workers and their representatives during several strikes and workers’ assemblies. The Committee notes the Government’s indications in this regard that: (i) there were three isolated cases for which the information provided by the ITUC does not on its own offer proof of the occurrence of abuses by the police or the judicial authorities; (ii) it is not possible to ascertain what actually happened without a detailed analysis of the action by the police; and (iii) the Brazilian legal system offers adequate judicial remedies to deal effectively with this type of situation. Emphasizing the importance of workers’ organizations being able to exercise their lawful activities in defence of the interests of their members in general and of collective bargaining in particular in a context free from violence, the Committee requests the Government to provide information on the results of the investigations concerning the cases referred to by the ITUC.

COVID-19 pandemic and the application of the Convention. The Committee notes the allegations by the CUT, CSB, Union Forces and PSI that provisional measures No. 927 (MP No. 927, published on 22 March 2020) and No. 936 (MP No. 936, published on 1 April 2020), adopted in response to the COVID-19 pandemic, severely prejudice the right to collective bargaining by ensuring that individual agreements between the employer and the worker prevail over collective bargaining machinery. The Committee notes that the trade union confederations allege in particular that: (i) section 2 of MP No. 927 provides for the possibility of establishing by individual agreement the adaptations necessary for the maintenance of the labour contract in the context of the health crisis, with the individual agreement prevailing over all other legislative and collective sources of labour law, with the sole exception of constitutional guarantees; (ii) MP No. 927 grants the employer the unilateral power to decide whether or not to extend the application of collective accords that have expired and which cannot be renewed due to the health crisis; (iii) MP No. 936 (relating to temporary measures for the reduction of working time and the suspension of labour contracts during the health crisis and providing for the payment of compensatory benefits to the employees concerned from public funds) gives preference to the implementation of this arrangement by individual agreement as it only envisages its activation by collective accord for a small proportion of the employed labour force and does not grant the same financial compensation for reduced working time negotiated collectively; and (iv) as MPs Nos 927 and 936 do not make the activation of the emergency measures for the reduction of working time and the suspension of labour contracts subject to the demonstration by enterprises of their necessity, they establish the conditions for a real state of emergency.

The Committee notes that the Government, while emphasizing the need for rapid and effective responses to the situation of emergency caused by the pandemic, refutes any violation of the Convention and indicates in particular that: (i) MP No. 927 has made it possible to safeguard immediately jobs that are endangered by the crisis, in a situation of great uncertainty, including the possibility to engage in collective bargaining in a context of physical distancing; (ii) MP No. 927 has enabled employers to take various temporary measures in such areas as remote working, the dates of holidays and the organization of working time; (iii) MP No. 927 did not prohibit collective bargaining during the period for which it was in force and, although section 2 gave preference to individual agreements over collective and legislative sources of labour law, the requirement to comply with labour rights endowed with constitutional protection offered substantial guarantees surrounding individual agreements; (iv) during the period that it was in force, the Federal Supreme Court, called upon to examine the constitutionality of MP No. 927, refused to order its temporary suspension, particularly because it contributed to the imperative of safeguarding jobs during a situation of emergency; and (v) it was envisaged that, in the absence of legislative approval, MP No. 927 would expire on 19 July 2020 at the latest; as a result of the absence of action by the Congress, the MP has thus no longer formed part of Brazilian legal rules since that date.

With respect to MP No. 936, the Committee takes note that the Government indicates that: (i) the MP introduced an emergency programme for the maintenance of jobs and incomes with a view to mitigating the impact of the public emergency situation; (ii) MP No. 936 provides, through individual or collective agreements, for the temporary possibility, during the situation of public emergency, to either reduce working time and remuneration in a proportional manner, or to suspend the labour contract, with such agreements giving rise, on the one hand, to a guarantee of the maintenance of the job during the period under consideration and, on the other, the payment by the Government of a job and income preservation compensation benefit calculated on the basis of the level of unemployment insurance to which the worker would be entitled; (iii) access to these emergency measures is not subject to the need to demonstrate a reduction in activity by the enterprise with a view to making the process more flexible and saving as many jobs as possible; (iv) the appeal by the trade union confederations challenging the constitutionality of MP No. 936 was also rejected; (v) MP No. 936, which has allowed over 10 million jobs to be saved, was unanimously transformed into a legislative instrument by the two chambers of the Congress through Act No. 14.020 of 2020; (vi) in contrast with the allegations of the trade union confederations, the mechanisms set out in MP No. 936 and Act No. 14.020 can be set in motion through collective bargaining for all employees, irrespective of their earnings level; (vii) however, it is only for workers whose salary is between 3,135 and 12,102 reais that the reduction in working time or the suspension of their contract must necessarily be determined through a collective accord as, under the terms of the mechanism that has been established, they are the ones who have a lower replacement rate of their salary than those at a lower remuneration scale; (viii) there is no differentiation in the level of earnings compensation benefit provided depending on whether the decision to reduce working time or suspend the contract is made by individual or collective agreement, but only the general rule that no compensation is payable for reductions in working time of under 25 per cent; and (ix) finally, to promote collective bargaining, MP No. 936 has reduced the applicable waiting periods by half and the measures taken by the executive authorities have made it possible to engage in virtual bargaining.

The Committee takes due note of the information provided by the Government and the trade union confederations. The Committee fully recognizes the exceptional circumstances experienced by the country due to the pandemic and the absolute necessity to adopt urgent measures to mitigate the economic and social effects of the resulting crisis. At the same time, the Committee recalls its general position that measures adopted during an acute crisis which set aside the application of the collective agreements that are in force must be of an exceptional nature, limited in time and provide guarantees for the workers most affected. The Committee also emphasizes that the Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205), underlines the importance of social dialogue in general and collective bargaining in particular in responding to crisis situations by encouraging the active participation of employers’ and workers’ organizations in planning, implementing and monitoring measures for recovery and resilience.

The Committee observes that MP No. 927 which, with a view to safeguarding employment, established the temporary primacy of individual agreements over collective accords and empowered the employer to take a certain number of unilateral decisions, including whether to extend or not the application of collective accords that expire during the pandemic, is no longer in force. The Committee nevertheless requests the Government to specify whether the clauses of collective agreements that may have been temporarily set aside by individual agreements concluded between the employer and the worker or by unilateral decisions of the employer taken under the terms of MP No. 927 are once again fully applicable.

With regard to MP No. 936, converted by the Congress into Act No. 14.020, the Committee understands that its objective is to allow the reduction of working time or the temporary suspension of the labour contract during the period of public emergency and to establish a temporary mechanism for the compensation of income from public funds. The Committee observes in this regard that, under the terms of the instruments referred to: (i) in the event of the reduction of working time, the hourly wage must be maintained; (ii) access to these mechanisms can be initiated either through a collective accord or an individual agreement for workers with low or very high incomes, but recourse to a collective accord is compulsory for workers with salaries in an intermediate range (around 11 per cent of the labour force, according to the Government); and (iii) when a collective accord is concluded, it prevails over individual agreements, except where the latter are more favourable to the employee. While recalling that it is the responsibility of the State under the terms of the Convention to promote collective bargaining machinery that applies to all workers irrespective of their income level, the Committee understands that the income protection mechanisms in the event of the reduction of activity established by MP No. 936 and Act No. 14.020 are not intended to set aside collective agreements and accords that are in force, but to establish a temporary system for reduced activity and income compensation that can be set in motion by individual agreement or collective accord. In these conditions, and on the basis of the principles referred to above, while duly noting the substantial efforts made by the Government to attenuate the loss of income by workers, the Committee encourages the Government to reinforce dialogue with the representative organizations of employers and workers with a view to assessing the impact of the implementation of Act No. 14.020, ensuring the application of collective agreements and accords that are in force and promoting, for all the workers covered by the Convention, the full utilization of collective bargaining machinery as a means of achieving balanced and sustainable solutions in a time of crisis. The Committee requests the Government to provide information on this subject.

The Committee also notes the allegations by the ITUC that the combined effect of the economic crisis caused by the pandemic and the possibility, arising out of the reform of labour legislation in 2017, of setting aside through collective bargaining a significant proportion of the protective provisions of the labour legislation could lead workers to accept lower terms and conditions of work and remuneration to keep their jobs. The Committee notes in this regard the Government’s reply refuting these claims and emphasizing both the guarantees and the flexibility offered by the new labour legislation with a view to preserving employment. While noting these indications, the Committee requests the Government to provide information in its next report on the number and content of the agreements and accords concluded during the period of public emergency, with an indication of the frequency of the exemptions from the protective provisions of the labour legislation that they may contain.

The Committee also notes the following observations received in 2019 relating to matters examined by the Committee in the present comment: (i) the observations of the CUT, received on 20 May 2019; (ii) the joint observations of the ITUC, the Building and Wood Workers International (BWI), Education International (EI), IndustriALL Global Union (IndustriALL), the International Transport Workers’ Federation (ITF), the International Union of Food, Agriculture, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF), PSI and UNI Global Union, received on 1 September 2019; (iii) the observations of the CNI and the National Confederation of Transport (CNT), both received on 1 September 2019; (iv) the observations of the NCST, received on 10 September 2019; and (v) the joint observations of the CUT and ITUC received on 18 September 2019.

The Committee also notes the observations of the IOE, received on 30 August 2019, containing the interventions made by employers during the Committee on the Application of Standards of the International Labour Conference in 2019 (hereinafter the Conference Committee).

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

The Committee notes the discussions in the Conference Committee in June 2019 on the application of the Convention by Brazil. The Committee notes that the Conference Committee requested the Government to: (i) continue to examine, in cooperation and consultation with the most representative employers’ and workers’ organizations, the impact of the reforms and to decide if appropriate adaptations are needed; and (ii) prepare, in consultation with the most representative employers’ and workers’ organizations, a report to be submitted to the Committee of Experts in accordance with the regular reporting cycle.

Article 1 of the Convention. Adequate protection against anti union discrimination. In its previous comments, the Committee noted 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”. In its previous comments, 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 notes the Government’s indication, in its 2019 report and the supplementary information provided in 2020, that: (i) freedom of association is protected by the Constitution; (ii) although the ordinary legislation does not contain a section on anti-union acts, it does have a section on the rights of trade union members; (iii) within this part, section 543 of the Consolidation of Labour Laws (CLT) establishes the employment stability of trade union representatives and section 543(6) establishes an administrative penalty for any employer that prevents a worker from exercising her or his trade union rights, without prejudice to the right to compensation that could be obtained by the latter; and (iv) section 199 of the Penal Code criminalizes the use of threats or violence to prevent a person from joining a union. The Committee also notes the indication by the CNT that new section 510-B of the CLT attributes the function to the committees of workers’ representatives of ensuring the prevention of any discrimination, including anti-union discrimination in the enterprise. The Committee takes note of this information. It observes in this regard that: (i) by virtue of Provisional Measure No. 905 of November 2019 (MP No. 905) administrative penalties applicable in the event of non-compliance with section 543(6) of the CLT were those imposed in relation to labour law violations in general; and (ii) MP No. 905 is no longer in force as it has not been confirmed by the Congress of the Republic. Recalling the fundamental importance of ensuring effective protection against anti-union discrimination, the Committee requests the Government to take the necessary measures to ensure that the legislation explicitly establishes specific and sufficiently dissuasive sanctions against all acts of anti-union discrimination. The Committee requests the Government to report any developments in this regard.

Article 4. Promotion of collective bargaining. Relationship between collective bargaining and the law. In its 2017 and 2018 comments, the Committee noted that, under the terms of Act No. 13467, adopted on 13 November 2017, new section 611-A of the CLT introduced the general principle that collective agreements and accords prevail over the legislation, and it is therefore possible through collective bargaining to derogate from the protective provisions of the legislation, with the sole limit of the constitutional rights referred to in section 611 B of the CLT. The Committee recalled that it considered that, while targeted legislative provisions covering specific aspects of conditions of work and providing, in a circumscribed and reasoned manner, for the possibility of their replacement by means of collective bargaining may be compatible with the Convention, a legal provision providing for a general possibility to derogate from labour legislation by means of collective bargaining would be contrary to the purpose of promoting free and voluntary collective bargaining established in Article 4 of the Convention. On this basis, the Committee requested the Government, in consultation with the representative social partners, to take the necessary measures for the revision of sections 611 A and 611 B of the CLT so as to specify more precisely the situations in which clauses derogating from the legislation may be negotiated collectively, as well as the scope of such clauses.

The Committee notes the joint observations of the ITUC, BWI, EI, IndustriALL, ITF, IUF, PSI and UNI Global Union, which denounce the harmful effects deriving from the general possibility to derogate through collective bargaining from the protective provisions of the legislation. The Committee notes that the international trade union organizations consider that the new relationship between collective bargaining and the law established by Act No. 13467: (i) radically undermines the pillars on which collective bargaining machinery is established and constitutes a frontal attack on free and voluntary collective bargaining, as guaranteed by the Convention; (ii) creates the conditions for a race to the bottom between employers for the reduction of workers’ rights; and (iii) has a dissuasive effect on the exercise of collective bargaining which is reported to have resulted in a decrease of 39 per cent in the coverage rate of collective bargaining in the country. The Committee also notes the observations of the CUT, which indicates that: (i) the measures that make it possible to lower working conditions through negotiation do not promote the utilization of collective bargaining; and (ii) the reform has given rise to a significant fall in the number of collective agreements and accords concluded. The Committee also notes the observations of the NCST in this respect.

The Committee further notes the observations of the CNT and CNI, according to which sections 611-A and 611-B of the CLT: (i) offer great freedom to determine conditions of work that are favourable for all the parties through collective bargaining; (ii) are in conformity with the provisions of the Brazilian Constitution, in providing for the possibility to derogate from certain rights through a collective accord, as well as with the case law of the Supreme Federal Court, which emphasizes the need to respect agreements concluded by the social partners; and (iii) are in accordance with ILO Conventions on the subject, as indicated by the examination of the Conference Committee, which did not find any grounds for incompatibility with the Convention.

The Committee notes the information provided by the Government, which essentially reiterates the positions expressed in previous reports. The Committee notes the Government’s indication that: (i) the 2017 legislative reform reinforces the role and value of collective bargaining by increasing its material scope, which is fully in conformity with the purposes of ILO Conventions on this subject, and particularly necessary in the context of excessively detailed labour legislation; (ii) the primacy recognized for collective agreements and accords over the law reinforces the legal security of collective bargaining, which is essential in view of the traditional interference by the Brazilian judicial authorities and responds to a historical demand by the Brazilian trade union movement; (iii) section 611-A of the CLT does not in any event require unions to conclude accords which set aside protective legal provisions, and the social partners can choose to continue to be governed by these legal provisions, when that is in the interests of the parties; (iv) the fact that section 611-A of the CLT establishes a non-exhaustive list of subjects on which collective agreements and accords may not derogate from the provisions of the legislation is intended to ensure the necessary flexibility for the social partners in their negotiations; (v) the reform also ensures the protection of 30 rights set out in section 611-B of the CLT, which cannot be set aside by collective bargaining; (vi) none of the 30 legal actions initiated at the national level against Act No. 13467 have been related to collective bargaining; (vii) a situation in which collective bargaining could only lead to additional benefits for workers would discourage employers from participating in such bargaining; (viii) following a reduction of 13.1 per cent in 2018, the number of collective agreements and accords began to rise over the first four months of 2019 to come close to the levels prior to the reform; and (ix) as found by a detailed study carried out by the Institute of Economic Research Foundation (FIPE), the agreements negotiated are favourable to workers and cover more areas than before, which shows that the alleged dissuasive effect of section 611-A on collective bargaining has not occurred; and (x) the reform of the labour legislation has been welcomed by the World Bank, the Organisation of Economic Co-operation and Development, and the International Monetary Fund. Finally, the Committee notes the Government’s statements that: (i) there is no textual basis for the position of the Committee that this Convention, as well as the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154), have the general objective of promoting more favourable conditions of work than those set out in the legislation; and (ii) the reference by the Committee to the preparatory work for the Conventions is inappropriate.

The Committee notes the various elements referred to by the Government and the national and international social partners and notes that, in the supplementary information provided in 2020, the parties reiterate their previously expressed positions. The Committee notes, in the first place, the Government’s indication that, contrary to the view expressed by the trade unions, the number of collective agreements and accords concluded is in the process of reaching the levels prior to the 2017 legislative reform. The Committee emphasizes the importance of continuing to have available full information on this subject, both on the number of agreements and accords concluded and their content. The Committee also notes the reiterated view by the Government and employers’ organizations that sections 611-A and 611-B of the CLT promote collective bargaining within the meaning of the Convention by ensuring greater freedom to the negotiating parties and at the same time guaranteeing that many rights cannot be set aside through collective bargaining.

The Committee recalls in this respect that, on the basis of the detailed information provided by the Government, the Committee noted in its previous comments that: (i) the possibility of setting aside the protective provisions of the legislation through collective bargaining introduced by Act No. 13467 is indeed not absolute, as section 611-B of the CLT establishes a limitative list setting out 30 rights, based on the provisions of the Constitution of Brazil, which cannot be set aside through collective agreements or accords; and (ii) the possibilities for derogation from the legislation through collective bargaining opened up by section 611-A are however very extensive insofar as, on the one hand, the section refers explicitly to 14 points covering many aspects of the employment relationship and, on the other, this list, in contrast with the list set out in section 611-B, is solely indicative (“inter alia”), with the possibility of setting aside the protective provisions of the legislation through collective bargaining thereby being established as a general principle.

The Committee recalls that it considers that, while targeted legislative provisions covering specific aspects of conditions of work and providing, in a circumscribed and reasoned manner, for the possibility of their replacement by means of collective bargaining may be compatible with the Convention, a legal provision providing for a general possibility to set aside the protective provisions of labour legislation by means of collective bargaining would be contrary to the objective of promoting free and voluntary collective bargaining, as set out in Article 4 of the Convention. While emphasizing the importance of obtaining, insofar as possible, tripartite agreement on the basic rules of collective bargaining, the Committee therefore once again requests the Government to take the necessary measures, in consultation with the representative social partners, for the revision of sections 611-A and 611-B of the CLT so as to specify more precisely the situations in which clauses derogating from the legislation may be negotiated, as well as the scope of such clauses. Moreover, noting the Government’s indications concerning the increase in the number of collective agreements and accords concluded during the first four months of 2019, the Committee requests the Government to continue providing information on developments in the number of collective agreements and accords concluded in the country, including on the agreements and accords which contain clauses derogating from the legislation, specifying the nature and scope of such derogations.

Relationship between collective bargaining and individual contracts of employment. In its previous comments, the Committee requested the Government to take the necessary measures to ensure the conformity with the Convention of section 444 of the CLT, under the terms of which workers who have a higher education diploma and receive a wage that is at least two times higher than the ceiling for benefits under the general social security scheme may derogate from the provisions of the applicable collective agreements in their individual contracts of employment.

The Committee notes the Government’s indication in this regard that Article 4 of the Convention does not refer to individual contracts of employment and that it reiterates in the supplementary information received in 2020 that section 444 of the CLT concerns a very small group of workers, generally higher managerial personnel, representing only around 0.25 per cent of the population. The Committee also notes the position of the employers’ organizations, the CNI and CNT, which consider that the provisions of section 444 extend the possibilities for negotiation available to the workers concerned. The Committee finally notes the position expressed by the national and international trade union organizations, which call for the repeal of the provision.

The Committee recalls once again that the obligation to promote collective bargaining set out in Article 4 of the Convention requires that the individual negotiation of the terms of the contract of employment cannot derogate from the rights and guarantees provided in the applicable collective agreements, on the understanding that contracts of employment can always set out more favourable terms and conditions of work and employment. The Committee also reiterates that this principle is explicitly set out in Paragraph 3 of the Collective Agreements Recommendation, 1951 (No. 91). While emphasizing once again that collective bargaining machinery can take into account the specific needs and interests of different categories of workers who may, if they so wish, be represented by their own organizations, the Committee recalls that the present Convention is fully applicable to the workers covered by section 444 of the CLT insofar as, under the terms of Articles 5 and 6, only the armed forces and the police (Article 5) and public servants engaged in the administration of the State (Article 6) may be excluded from the scope of application of the Convention. The Committee therefore reiterates that the Convention does not allow for an exclusion from its scope of application on the basis of the level of remuneration of the workers. The Committee therefore once again requests the Government, after consultation with the representative social partners concerned, to take the necessary measures to ensure the conformity of section 444 of the CLT with the Convention. The Committee requests the Government to provide information on any progress achieved in this respect.

Scope of application of the Convention. Autonomous and self employed workers. In its comments adopted in 2017 and 2018, based on the allegations made by the trade unions that the extension of the definition of self-employed workers as a result of new section 442-B of the CLT would have the effect of excluding a significant category of workers from the rights set out in the Convention, the Committee invited the Government to hold consultations with all the parties concerned with a view to ensuring that all autonomous and self-employed workers are authorized to participate in free and voluntary collective bargaining, and to identify the appropriate adaptations to be introduced into collective bargaining procedures to facilitate their application to these categories of workers.

The Committee recalls that, irrespective of the definition of autonomous and self-employed workers stemming from section 442-B of the CLT, all workers, including autonomous and self-employed workers, are covered by the provisions of the Convention. In this respect, in 2019 the Committee welcomed the Government’s indications that, under the terms of section 511 of the CLT, which recognizes the right to organize of autonomous workers, these workers are also covered by the right to engage in collective bargaining. The Committee also noted in this regard the similar position expressed by the CNT and CNI. At the same time, the Committee notes: (i) the call made by the ITUC and seven international trade union federations in 2019 for all measures to be taken to ensure the effective access of autonomous and self-employed workers to free and voluntary collective bargaining; (ii) the indication by the CUT in its observations in 2020 that, although section 511 of the CLT recognizes the right of autonomous workers to organize, this provision does not however grant them the possibility to have access to collective bargaining machinery, particularly in view of the absence of a counterpart and, in practice, the fact that the transition from the status of employee to that of autonomous worker under the terms of section 442-B would have the effect of excluding the workers concerned from the coverage of the collective agreements in force; and (iii) the indication by the Government in its supplementary information provided in 2020 that the emergence of various non-standard forms of work is an additional challenge for collective bargaining in all countries, particularly in view of the low unionization rate. In light of the above, noting the broad scope of section 511 of the CLT, the Committee invites the Government to: (i) provide examples of collective agreements or accords negotiated by organizations representing autonomous or self-employed workers or, at the least, of which the scope of application would cover these categories of workers; and (ii) engage in consultations with all the parties concerned with the objective of identifying appropriate modifications to be introduced into collective bargaining machinery to facilitate its application to autonomous and self-employed workers. The Committee requests the Government to provide information on the progress achieved in this respect.

Relationship between the various levels of collective bargaining. The Committee previously noted that, under the terms of section 620 of the CLT, as amended by Act No. 13467, the conditions established in collective labour accords (which are concluded at the level of one or more enterprises) always prevail over those contained in collective labour agreements (which are concluded at a broader level, such as a sector of activity or an occupation). In this regard, the Committee requested the Government to indicate the manner in which respect for the commitments made by the social partners in the framework of agreements concluded at the level of the sector of activity or occupation is guaranteed and to provide information on the impact of section 620 of the CLT on recourse to the negotiation of collective agreements and collective accords, and on the overall coverage rate of collective bargaining in the country.

The Committee notes that the Government confines itself to indicating in this regard that the objective of section 620 of the CLT is to allow the conclusion of accords that are closer to the everyday reality of workers and the enterprise. The Committee also notes that the CNI and CNT consider that the primacy accorded in all cases to collective accords over collective agreements, of which the scope of application is broader, is fully in accordance with the provisions of the Convention, insofar as the latter does not establish any order of preference or hierarchy between the various bargaining levels.

The Committee recalls once again that, in accordance with Article 4 of the Convention, collective bargaining must be promoted at all levels and that, in conformity with the general principle set out in Paragraph 3(1) of Recommendation No. 91, collective agreements should bind the signatories thereto and those on whose behalf the agreement is concluded. Noting the absence of replies by the Government in this regard, the Committee once again requests the Government to: (i) indicate the manner in which respect for the commitments made by the social partners in the framework of agreements concluded at the level of the sector of activity or occupation is guaranteed; and (ii) provide information on the impact of section 620 of the CLT on recourse to the negotiation of collective agreements and collective accords, and on the overall coverage rate of collective bargaining in the country.

Article 4. Promotion of free and voluntary collective bargaining. Subjection of collective agreements to financial and economic policy. The Committee recalls that for many years it has been emphasizing the need to repeal section 623 of the CLT, under the terms of which the 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. In this regard, emphasizing that Article 4 of the Convention requires the promotion of free and voluntary collective bargaining, the Committee recalled 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 notes that, in the supplementary information provided in 2020, the Government indicates that: (i) section 623 of the CLT, adopted in 1967, is not in accordance with the objectives of the Constitution of 1988 and is therefore no longer applied; and (ii) the only limitation that is currently in force concerns the prohibition of the automatic adjustment of wages on the basis of the price index to prevent an increase in inflation, which places no restriction on wage negotiations on the basis of other factors. While taking due note of the Government’s indications, the Committee observes that the 2017 reform of the labour legislation did not remove section 623 of the CLT. 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.

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

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Article 4 of the Convention. Promotion of collective bargaining. Duration of collective agreements and accords. Noting that section 614(3) of the Consolidation of Labour Laws (CLT) sets a maximum limit of two years for the duration of collective agreements and accords and prohibits the inclusion in such agreements and accords of clauses on the maintenance of their effects in the event of their non-renewal, the Committee previously emphasized that the determination of the duration of collective agreements and their effects by the parties is covered by the principle of free and voluntary collective bargaining promoted by the Convention and that any derogations from this rule should in so far as possible reflect tripartite agreement. On this basis, the Committee invited the Government to engage in consultations with the representative organizations of employers and workers concerning the content of section 614(3) of the Consolidation of Labour Laws. In this regard, the Committee notes, on the one hand, the views expressed by the Government and the employers’ organizations, CNI and CNT, which indicate that the duration of collective agreements is not envisaged by the Convention and that the limitation of their duration has the effect of promoting the regular exercise of collective bargaining. The Committee notes, on the other hand, the persistent opposition to section 614(3) of the Consolidation of Labour Laws expressed by the CUT and NCST. The Committee once again invites the Government to provide information on the consultations held with the representative organizations of employers and workers on the content of section 614(3) of the Consolidation of Labour Laws with a view to seeking tripartite agreement on the regulation of the duration of collective agreements and accords.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the following observations relating to matters examined by the Committee in the present comment: (i) the observations of the Single Confederation of Workers (CUT), received on 20 May 2019; (ii) the joint observations of the International Trade Union Confederation (ITUC), the Building and Wood Workers International (BWI), Education International (EI), IndustriALL Global Union (IndustriALL), the International Transport Workers’ Federation (ITF), the International Union of Food, Agriculture, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF), Public Services International (PSI) and UNI Global Union, received on 1 September 2019; (iii) the observations of the National Confederation of Industry (CNI) and the National Confederation of Transport (CNT), both received on 1 September 2019; (iv) the observations of the New Workers’ Trade Union Confederation (NCST), received on 10 September 2019; and (v) the joint observations of the CUT and ITUC received on 18 September 2019.

The Committee also notes the observations of the International Organisation of Employers (IOE), received on 30 August 2019, containing the interventions made by employers during the Committee on the Application of Standards of the International Labour Conference in 2019 (hereinafter the Conference Committee).

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

The Committee notes the discussions in the Conference Committee in June 2019 on the application of the Convention by Brazil. The Committee notes that the Conference Committee requested the Government to: (i) continue to examine, in cooperation and consultation with the most representative employers’ and workers’ organizations, the impact of the reforms and to decide if appropriate adaptations are needed; and (ii) prepare, in consultation with the most representative employers’ and workers’ organizations, a report to be submitted to the Committee of Experts in accordance with the regular reporting cycle.

Article 1 of the Convention. Adequate protection against anti union discrimination. In its previous comments, the Committee noted 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”. In its previous comments, 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 notes the Government’s indication that: (i) freedom of association is protected by the Constitution; (ii) although the ordinary legislation does not contain a section on anti-union acts, it does have a section on the rights of trade union members; and (iii) within this part, section 543 of the Consolidation of Labour Laws (CLT) establishes the provisional stability of employment of trade union representatives and section 543(6) establishes an administrative penalty for any employer that prevents a worker from exercising her or his trade union rights, without prejudice to the right to compensation that could be obtained by the latter. The Committee also notes the indication by the CNT that new section 510-B of the CLT attributes the function to the committees of workers’ representatives of ensuring the prevention of any discrimination, including anti-union discrimination in the enterprise. The Committee takes note of this information. It observes in this regard that: (i) the administrative penalties applicable in the event of non-compliance with section 543(6) of the CLT are currently established by the Provisional Measure No. 905 of November 2019 (a legislative measure adopted by the President which may remain in force for a maximum period of 120 days without the approval of the National Congress); (ii) the fines for anti-union acts prohibited under section 543(6) of the CLT are those imposed in relation to labour law violations in general; (iii) their amounts range from 1,000 to 100,000 Brazilian reals depending on whether the offences are of a mild, medium, serious or very serious; and (iv) the legislation does not specify the type of offences that are applicable to acts of anti-union discrimination. Recalling the fundamental importance of ensuring effective protection against anti-union discrimination, the Committee requests the Government to take the necessary measures to ensure that the legislation explicitly establishes specific and sufficiently dissuasive sanctions against all acts of anti-union discrimination. The Committee requests the Government to report any developments in this regard.

Article 4. Promotion of collective bargaining. Relationship between collective bargaining and the law. In its previous comments, the Committee noted that, under the terms of Act No. 13467, adopted on 13 November 2017, new section 611-A of the CLT introduced the general principle that collective agreements and accords prevail over the legislation, and it is therefore possible through collective bargaining to derogate from the protective provisions of the legislation, with the sole limit of the constitutional rights referred to in section 611 B of the CLT. The Committee recalled that it considered that, while targeted legislative provisions covering specific aspects of conditions of work and providing, in a circumscribed and reasoned manner, for the possibility of their replacement by means of collective bargaining may be compatible with the Convention, a legal provision providing for a general possibility to derogate from labour legislation by means of collective bargaining would be contrary to the purpose of promoting free and voluntary collective bargaining established in Article 4 of the Convention. On this basis, the Committee requested the Government, in consultation with the representative social partners, to take the necessary measures for the revision of sections 611 A and 611 B of the CLT so as to specify more precisely the situations in which clauses derogating from the legislation may be negotiated collectively, as well as the scope of such clauses.

The Committee notes the joint observations of the ITUC, BWI, EI, IndustriALL, ITF, IUF, PSI and UNI Global Union, which denounce the harmful effects deriving from the general possibility to derogate through collective bargaining from the protective provisions of the legislation. The Committee notes that the international trade union organizations consider that the new relationship between collective bargaining and the law established by Act No. 13467: (i) radically undermines the pillars on which collective bargaining machinery is established and constitutes a frontal attack on free and voluntary collective bargaining, as guaranteed by the Convention; (ii) creates the conditions for a race to the bottom between employers for the reduction of workers’ rights; and (iii) has a dissuasive effect on the exercise of collective bargaining which is reported to have resulted in a decrease of 39 per cent in the coverage rate of collective bargaining in the country. The Committee also notes the observations of CUT, which indicates that: (i) the measures that make it possible to lower working conditions through negotiation do not promote the utilization of collective bargaining; and (ii) the reform has given rise to a significant fall in the number of collective agreements and accords concluded. The Committee also notes the observations of the NCST in this respect.

The Committee further notes the observations of the CNT and CNI, according to which sections 611-A and 611-B of the CLT: (i) offer great freedom to determine conditions of work that are favourable for all the parties through collective bargaining; (ii) are in conformity with the provisions of the Brazilian Constitution, in providing for the possibility to derogate from certain rights through a collective accord, as well as with the case law of the Supreme Federal Court, which emphasizes the need to respect agreements concluded by the social partners; and (iii) are in accordance with ILO Conventions on the subject, as indicated by the examination of the Conference Committee, which did not find any grounds for incompatibility with the Convention.

The Committee notes the information provided by the Government which, essentially, reiterates the positions expressed in previous reports. The Committee notes the Government’s indication that: (i) the 2017 legislative reform reinforces the role and value of collective bargaining by increasing its material scope, which is fully in conformity with the purposes of ILO Conventions on this subject, and particularly necessary in the context of excessively detailed labour legislation; (ii) the primacy recognized for collective agreements and accords over the law reinforces the legal security of collective bargaining, which is essential in view of the traditional interference by the Brazilian judicial authorities and responds to a historical demand by the Brazilian trade union movement; (iii) section 611-A of the CLT does not in any event require unions to conclude accords which set aside protective legal provisions, and the social partners can choose to continue to be governed by these legal provisions, when that is in the interests of the parties; (iv) the reform also ensures the protection of 30 rights set out in section 611-B of the CLT, which cannot be set aside by collective bargaining; (v) none of the 30 legal actions initiated at the national level against Act No. 13467 have been related to collective bargaining; (vi) a situation in which collective bargaining could only lead to additional benefits for workers would discourage employers from participating in such bargaining; (vii) following a reduction of 13.1 per cent in 2018, the number of collective agreements and accords began to rise over the first four months of 2019 to come close to the levels prior to the reform; and (viii) as found by a detailed study carried out by the Institute of Economic Research Foundation (FIPE), the agreements negotiated are favourable to workers and cover more areas than before, which shows that the alleged dissuasive effect of section 611-A on collective bargaining has not occurred; and (ix) the reform of the labour legislation has been welcomed by the World Bank, the Organisation of Economic Co-operation and Development, and the International Monetary Fund. Finally, the Committee notes the Government’s statements that: (i) there is no textual basis for the position of this Committee as well as the Labour Relations (Public Service) Convention, 1978 (No. 151) and the Collective Bargaining Convention, 1981 (No. 154) have the general objective of promoting more favourable conditions of work than those set out in the legislation; and (ii) the reference by the Committee to the preparatory work for the Conventions is inappropriate.

The Committee notes the various elements referred to by the Government and the national and international social partners. The Committee notes, in the first place, the Government’s indication that, contrary to the view expressed by the trade unions, the number of collective agreements and accords concluded is in the process of reaching the levels prior to the 2017 legislative reform. The Committee emphasizes the importance of continuing to have available full information on this subject, both on the number of agreements and accords concluded and their content. The Committee also notes the reiterated view by the Government and employers’ organizations that sections 611-A and 611-B of the CLT promote collective bargaining within the meaning of the Convention by ensuring greater freedom to the negotiating parties and at the same time guaranteeing that many rights cannot be set aside through collective bargaining.

The Committee recalls in this respect that, on the basis of the detailed information provided by the Government, the Committee noted in previous comments that: (i) the possibility of setting aside the protective provisions of the legislation through collective bargaining introduced by Act No. 13467 is indeed not absolute, as section 611-B of the CLT establishes a limitative list setting out 30 rights, based on the provisions of the Constitution of Brazil, which cannot be set aside through collective agreements or accords; and (ii) the possibilities for derogation from the legislation opened up by section 611-A are however very extensive insofar as, on the one hand, the section refers explicitly to 14 points covering many aspects of the employment relationship and, on the other, this list, in contrast with the list set out in section 611-B, is solely indicative (“inter alia”), with the possibility of setting aside the protective provisions of the legislation through collective bargaining thereby being established as a general principle.

The Committee recalls that it considers that, while targeted legislative provisions covering specific aspects of conditions of work and providing, in a circumscribed and reasoned manner, for the possibility of their replacement by means of collective bargaining may be compatible with the Convention, a legal provision providing for a general possibility to set aside the protective provisions from labour legislation by means of collective bargaining would be contrary to the objective of promoting free and voluntary collective bargaining, as set out in Article 4 of the Convention. While emphasizing the importance of obtaining, insofar as possible, tripartite agreement on the basic rules of collective bargaining, the Committee therefore once again requests the Government to take the necessary measures, in consultation with the representative social partners, for the revision of sections 611-A and 611-B of the CLT so as to specify more precisely the situations in which clauses derogating from the legislation may be negotiated, as well as the scope of such clauses. Moreover, noting the Government’s indications concerning the increase in the number of collective agreements and accords concluded during the first four months of 2019, the Committee requests the Government to continue providing information on developments in the number of collective agreements and accords concluded in the country, including on the agreements and accords which contain clauses derogating from the legislation, specifying their nature and scope.

Relationship between collective bargaining and individual contracts of employment. In its previous comments, the Committee requested the Government to take the necessary measures to ensure the conformity with the Convention of section 444 of the CLT, under the terms of which workers who have a higher education diploma and receive a wage that is at least two times higher than the ceiling for benefits under the general social security scheme may derogate from the provisions of the applicable collective agreements in their individual contracts of employment.

The Committee notes the Government’s indication in this regard that Article 4 of the Convention does not refer to individual contracts of employment and that it reiterates that section 444 of the CLT concerns a very small group of workers, generally higher managerial personnel, representing only around 0.25 per cent of the population. The Committee also notes the position of the employers’ organizations, the CNI and CNT, which consider that the provisions of section 444 extend the possibilities for negotiation available to the workers concerned. The Committee finally notes the position expressed by the national and international trade union organizations, which call for the repeal of the provision.

The Committee recalls once again that the obligation to promote collective bargaining set out in Article 4 of the Convention requires that the individual negotiation of the terms of the contract of employment cannot derogate from the rights and guarantees provided in the applicable collective agreements, on the understanding that contracts of employment can always set out more favourable terms and conditions of work and employment. The Committee also reiterates that this principle is explicitly set out in Paragraph 3 of the Collective Agreements Recommendation, 1951 (No. 91). While emphasizing once again that collective bargaining machinery can take into account the specific needs and interests of different categories of workers who may, if they so wish, be represented by their own organizations, the Committee recalls that the present Convention is fully applicable to the workers covered by section 444 of the CLT insofar as, under the terms of Articles 5 and 6, only the armed forces and the police (Article 5) and public servants engaged in the administration of the State (Article 6) may be excluded from the scope of application of the Convention. The Committee therefore reiterates that the Convention does not allow for an exclusion from its scope of application on the basis of the level of remuneration of the workers. The Committee therefore once again requests the Government, after consultation with the representative social partners concerned, to take the necessary measures to ensure the conformity of section 444 of the CLT with the Convention. The Committee requests the Government to provide information on any progress achieved in this respect.

Scope of application of the Convention. Autonomous and self employed workers. In its previous comments, based on the allegations made by the trade unions that the extension of the definition of self-employed workers as a result of new section 442-B of the CLT would have the effect of excluding a significant category of workers from the rights set out in the Convention, the Committee invited the Government to hold consultations with all the parties concerned with a view to ensuring that all autonomous and self-employed workers are authorized to participate in free and voluntary collective bargaining, and to identify the appropriate adaptations to be introduced into collective bargaining procedures to facilitate their application to these categories of workers.

The Committee recalls that, irrespective of the definition of autonomous and self-employed workers stemming from section 442-B of the CLT, all workers, including autonomous and self-employed workers are covered by the provisions of the Convention. In this respect, the Committee welcomes the Government’s indications that, under the terms of section 511 of the CLT, which recognizes the right to organize of autonomous workers, these workers are also covered by the right to engage in collective bargaining. The Committee further notes in this regard the similar position expressed by the CNT and CNI. At the same time, the Committee notes the call made by the ITUC and seven international trade union federations for all measures to be taken to ensure the effective access of autonomous and self-employed workers to free and voluntary collective bargaining. The Committee invites the Government to provide examples of collective agreements or accords negotiated by organizations representing autonomous or self-employed workers or, at the least, of which the scope of application covers these categories of workers.

Relationship between the various levels of collective bargaining. The Committee previously noted that, under the terms of section 620 of the CLT, as amended by Act No. 13467, the conditions established in collective labour accords (which are concluded at the level of one or more enterprises) always prevail over those contained in collective labour agreements (which are concluded at a broader level, such as a sector of activity or an occupation). In this regard, the Committee requested the Government to indicate the manner in which respect for the commitments made by the social partners in the framework of agreements concluded at the level of the sector of activity or occupation is guaranteed and to provide information on the impact of section 620 of the CLT on recourse to the negotiation of collective agreements and collective accords, and on the overall coverage rate of collective bargaining in the country.

The Committee notes that the Government confines itself to indicating in this regard that the objective of section 620 of the CLT is to allow the conclusion of accords that are closer to the everyday reality of workers and the enterprise. The Committee also notes that the CNI and CNT consider that the primacy accorded in all cases to collective accords over collective agreements, of which the scope of application is broader, is fully in accordance with the provisions of the Convention, insofar as the latter does not establish any order of preference or hierarchy between the various bargaining levels.

The Committee recalls once again that, in accordance with Article 4 of the Convention, collective bargaining must be promoted at all levels and that, in conformity with the general principle set out in Paragraph 3(1) of Recommendation No. 91, collective agreements should bind the signatories thereto and those on whose behalf the agreement is concluded. Noting the absence of replies by the Government in this regard, the Committee once again requests the Government to: (i) indicate the manner in which respect for the commitments made by the social partners in the framework of agreements concluded at the level of the sector of activity or occupation is guaranteed; and (ii) provide information on the impact of section 620 of the CLT on recourse to the negotiation of collective agreements and collective accords, and on the overall coverage rate of collective bargaining in the country.

Article 4. Promotion of free and voluntary collective bargaining. Subjection of collective agreements to financial and economic policy. The Committee recalls that for many years it has been emphasizing the need to repeal section 623 of the CLT, under the terms of which the 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. In this regard, emphasizing that Article 4 of the Convention requires the promotion of free and voluntary collective bargaining, the Committee recalled 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. In view of the absence of a response from the Government on this matter, and noting that the 2017 reform of the labour legislation has not removed this section, the Committee 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.

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

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Article 4 of the Convention. Promotion of collective bargaining. Duration of collective agreements and accords. The Committee notes the observations of the International Trade Union Confederation (ITUC) and the Single Confederation of Workers (CUT) that section 614 of the Consolidation of Labour Laws (CLT) relating to the duration of collective agreements is contrary to the Convention. The Committee notes in this regard this section sets a maximum limit of two years for the duration of collective agreements and accords and prohibits the inclusion in such agreements and accords of clauses on the maintenance of their effects in the event of their non-renewal. Emphasizing that the determination of the duration of agreements and the potential maintenance of their effects for the parties is covered by the principle of free and voluntary collective bargaining promoted by the Convention, the Committee considers that all derogations to this rule should in so far as possible reflect tripartite agreement. The Committee invites the Government to engage in consultations with the representative organizations of employers and workers on the content of section 614 of the CLT. The Committee requests the Government to provide information on any developments in this regard.

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes the observations of: (i) the National Association of Labour Court Judges (ANAMATRA), received on 1 June 2018; (ii) the International Trade Union Confederation (ITUC), received on 1 September 2018; and (iii) the Single Confederation of Workers (CUT), communicated jointly with the ITUC and also received on 1 September 2018. The Committee notes that these observations, presented both in relation to the present Convention and the Collective Bargaining Convention, 1981 (No. 154), concern aspects of Act No. 13467 on collective bargaining.

The Committee also notes the joint observations of the International Organisation of Employers (IOE) and the National Confederation of Industry (CNI), received on 1 September 2018, which also relate to aspects of Act No. 13467 on collective bargaining examined by the Committee in its previous comment.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 107th Session, May–June 2018)

The Committee notes the discussions in the Committee on the Application of Standards of the Conference (hereinafter, the Conference Committee) in June 2018 on the application of the Convention by Brazil. The Committee notes in particular that the Conference Committee, taking into account the fact that the Committee of Experts examined this case outside the regular reporting cycle, considering the Government’s oral submissions to the Conference Committee regarding the labour law reform and its compliance with its obligations under the Convention, and the discussion that followed, recommended the Government to: (i) provide information and analysis on the application of the principles of free and voluntary collective bargaining in the new labour law reform; and (ii) provide information on the tripartite consultations with the social partners regarding the labour law reform.

Article 4 of the Convention. Promotion of collective bargaining. Adoption of Act No. 13467. The Committee notes the Government’s indications concerning the early examination of the application of the Convention by the Committee in 2017. The Committee notes the Government’s view that: (i) the mandate of the Committee of Experts is to examine the application of ILO Conventions by member States in law and practice taking into account the different national situations and legal systems; (ii) in this respect, as mentioned during the discussion in the Conference Committee, the Government would have preferred the examination of the Convention to be undertaken during the regular reporting cycle so that sufficient time had elapsed to assess the application of the Act in practice. The Committee emphasizes in this regard that in 2017, after having received observations from both trade unions and employers’ organizations on the labour law reform process and noted the indications by the trade unions that the adoption of Act No. 13467 was likely to have a significant effect on the exercise of the fundamental right to collective bargaining, it considered it appropriate, in accordance with the criteria that it has established in this respect, to undertake an early examination of the application of the Convention by Brazil.

Relationship between collective bargaining and the law. In its previous comment, the Committee observed that, in accordance with Act No. 13467 adopted on 13 November 2017, new section 611-A of the Consolidation of Labour Laws (CLT) introduced the general principle that collective agreements and accords prevail over the legislation, and it is therefore possible through collective bargaining to derogate from the protective provisions of the legislation, with the sole limit of the constitutional rights referred to in section 611 B of the CLT. Considering that this principle is contrary to the objective of promoting free and voluntary collective bargaining, the Committee requested the Government to examine, following consultation with the social partners, the revision of sections 611-A and 611-B in order to bring them into conformity with Article 4 of the Convention.

In this respect, the Committee notes firstly the observations of the national and international trade unions concerning the scope and impact of the principle set out in section 611-A of the CLT. The Committee notes in particular that the trade unions allege, on the basis, among other sources, of a report of the Public Ministry of Labour of Brazil (Ministério Público do Trabalho) that the possibility of setting aside the protective provisions of the legislation through collective agreements and accords are particularly broad and significant as: (i) the list of subjects that can be set aside established in section 611-A of the CLT is described as non exhaustive; (ii) section 611-A explicitly provides that the absence of a compensatory measure for setting aside a legal protection is not a reason for annulling the clause in the agreement; (iii) the derogations made possible by section 611-A may be the product of enterprise accords which, under the terms of section 620 of the CLT, prevail over collective agreements covering a broader area; (iv) the subjects explicitly defined in section 611-A from which it is possible to derogate include the basic elements of worker protection, such as working time and rest periods, including the regulation of work and its duration in an unhealthy environment; (v) in violation of the basic principles of international labour law, sections 611-A and 611-B of the CLT provide that issues relating to hours of work and rest periods shall not be considered as being a matter of occupational safety and health; (vi) the possibility to set aside legal provisions governing the system of remuneration based on labour productivity may have dangerous consequences on hours of work and the health of workers; and (vii) compliance with the international labour Conventions ratified by Brazil is not indicated as constituting a limit to the possibilities of setting aside the provisions of the labour legislation through collective bargaining, which places in particular danger the application of the ILO Hours of Work (Industry) Convention, 1919 (No. 1), the Hours of Work (Commerce and Offices) Convention, 1930 (No. 30), and the Occupational Safety and Health Convention, 1981 (No. 155).

Secondly, the Committee notes the assertion by the trade unions that the possibility of setting aside the protective provisions of the legislation creates the conditions for downward competition between employers in relation to terms and conditions of work and employment, which will inhibit the practice of collective bargaining as an instrument for improving conditions of work. The Committee also notes that the report of the Public Ministry of Labour attached by the CUT indicates that, in the specific context of collective labour relations in Brazil, the principle set out in section 611-A of the CLT is likely to result in trade unions being subject to threats and pressure to accept derogations from the legislation and to authorize all trade unions, irrespective of their level of representativity, to negotiate below the level of legal protection, which could act as an incentive for corruption in collective labour relations. Finally, the Committee notes the assertion by the trade unions that the first statistics available confirm the fears expressed previously on the harmful effects of the establishment of the primacy of collective agreements and accords over the legislation. The Committee notes in this regard the various studies provided by the trade union organizations indicating that the number of collective agreements and accords concluded during the first half of 2018 is between 30 and 45 per cent lower than the first half of 2017.

The Committee also notes the observations of the employers’ organizations, which indicate that: (i) the principle of free and voluntary collective bargaining is fully guaranteed by the Constitution of Brazil, which also provides in article 7 for cases in which it is possible, through collective bargaining, for the flexible application of certain rights; (ii) the recognition of the primacy of collective bargaining over the legislation was necessary in a context characterized up to now by the excessive interventionism of the judicial authorities in accords concluded by the social partners; (iii) the primacy of bargaining over the law will therefore offer greater legal security to the social partners, which will allow the promotion of collective bargaining; (iv) the primacy of collective bargaining over the law is however far from being absolute, as section 611-B of the CLT establishes a long list of rights that cannot be set aside, such as normal hours of work in the day (eight hours) and the week (44 hours) and 50 per cent additional remuneration for overtime hours; and (v) collective bargaining remains entirely free and voluntary, as the unions can easily decide not to sign an accord containing derogations from the legislation.

Finally, the Committee notes the Government’s comments concerning, firstly, the content and scope of sections 611-A and 611-B of the CLT. The Government considers in this respect that: (i) the reform reinforces the role and value of collective bargaining by increasing its material scope of intervention, which is in full conformity with the objectives of ILO Conventions on this subject; (ii) the primacy recognized for collective agreements and accords over the law reinforces the legal security of collective bargaining, which is indispensable in light of the traditional interference of the judicial authorities of Brazil in this respect and makes it possible to render excessively detailed labour legislation more flexible; (iii) the reform also ensures the protection of the many rights set out in section 611-B of the CLT; (iv) the possibility to set aside individual legislative provisions does not mean that the collective agreement or accord is not more favourable to workers as a whole; (v) the view of the Supreme Federal Court, which in a recent ruling recognized the primacy of collective bargaining on condition that a “minimum floor of civilization” remains guaranteed by the law, is accordingly set out in the legislation; (vi) the recognition of the primacy of negotiation over the legislation is in accordance with the proposal made by a metallurgical union in 2011; and (vii) section 611-A does not in any event compel trade unions to conclude accords which set aside protective legal provisions, as the social partners can choose to continue to be governed, when that is in the interests of the parties, by the provisions of the legislation. The Committee also notes the Government’s views on the meaning and scope of the Convention in relation to collective bargaining. In this regard, the Committee notes the Government’s indication that: (i) nothing in Article 4 of the Convention establishes a link between the respective content of collective agreements and the legislation, as the sole purpose of the Convention is to promote collective bargaining; (ii) the same applies to Article 2 of Convention No. 154, which sets out the purpose of collective bargaining, with the sole purpose being once again to achieve its broader application; (iii) it is not legally well-founded to refer to the preparatory work of Convention No. 154 for the interpretation of Convention No. 98; and (iv) there is in any case no justification for referring to the preparatory work in the case of Article 4 of the Convention since, under the terms of Article 32 of the Vienna Convention on the Law of Treaties, recourse to the preparatory work is only a supplementary means of interpretation which may be used either to confirm the results of the general rules of interpretation, or when the latter leave the meaning ambiguous, obscure or manifestly unreasonable, which is not the case in the present instance.

The Committee takes due note of the information provided by the employers’ and workers’ organizations and by the Government concerning sections 611-A and 611-B of the CLT, and particularly on the links between these provisions and the obligations deriving from the Convention, the scope of the derogations to the legislation through collective bargaining made possible by section 611-A and on the limits established in this respect by section 611-B. The Committee notes that, based on this information: (i) the possibility of setting aside the protective provisions of the legislation through collective bargaining is not absolute, as section 611-B establishes a limitative list setting out 30 rights (including, for example, the minimum wage, normal hours of work per day (eight hours) and per week (44 hours) and the percentage of additional remuneration for overtime hours), based on the provisions of the Constitution of Brazil, which cannot be set aside through collective agreements or accords; (ii) the possibilities for derogation from the legislation opened up by section 611-A are however very extensive in so far as, on the one hand, the 14 points explicitly mentioned in this section cover numerous aspects of the employment relationship and, on the other hand, this list, in contrast with the wording of section 611-B, is solely indicative (“inter alia”). In the light of these elements, the Committee observes that, even though it is limited by a significant number of exceptions, the possibility to set aside protective legislative provisions through collective bargaining, established as a general principle by section 611-A of the CLT, remains particularly broad. Emphasizing that Article 4 of the Convention, in the same way as Conventions Nos 151 and 154, which have also been ratified by Brazil, have the general objective of promoting collective bargaining as a means of reaching agreement on more favourable terms and conditions of work than those envisaged in the legislation, the Committee recalls that it considers that the introduction of a general possibility of derogating through collective bargaining the protection established for workers in the legislation would in practice 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 the present case, the Committee considers that the extent of the derogations allowed by section 611-A of the CLT, which can be made by a sectoral collective agreement, as well as by an agreement at the company level, may affect the purpose and attractiveness of collective bargaining in the country, or at the very least to significantly modify its perception by the actors concerned and accordingly compromise its promotion and exercise. In this regard, the Committee notes with concern the data contained in the surveys provided by the trade union organizations concerning a significant decline in the number of collective agreements and accords concluded in the country since the entry into force of the reform of the legislation in November 2017. The Committee notes the Government’s indication in this respect that the trade unions are continuing to negotiate and sign collective agreements and accords.

In light of the above, the Committee recalls that while targeted legislative provisions covering specific aspects of conditions of work and providing, in a circumscribed and reasoned manner, for the possibility of their replacement by means of collective bargaining may be compatible with the Convention, a legal provision providing for a general possibility to derogate from labour legislation by means of collective bargaining would be contrary to the purpose of promoting free and voluntary collective bargaining established in Article 4 of the Convention. While emphasizing the importance of obtaining, in so far as possible, tripartite agreement on the basic rules of collective bargaining, the Committee requests therefore the Government to take the necessary measures, in consultation with the representative social partners, for the revision of sections 611-A and 611-B of the CLT so as to specify more precisely the situations in which clauses derogating from the legislation may be negotiated, as well as the scope of such clauses. The Committee requests the Government to provide information on any progress in this regard. It also requests the Government to communicate detailed information on the number of collective agreements and accords signed in the country, as well as on the number, content and scope of the clauses derogating from the legislation included in those accords and agreements.

Relationship between collective bargaining and individual contracts of employment. In its previous comments, the Committee noted that, under the terms of new section 444 of the CLT, workers who have a higher education diploma and receive a wage that is at least two times higher than the ceiling for benefits under the general social security scheme (currently around 11,000 Brazilian reals (BRL), or approximately US$3,390) will be able to derogate from the provisions of the legislation and collective agreements in their individual contracts of employment. The Committee recalled that legislative provisions which allow individual contracts of employment to contain clauses contrary to those contained in the applicable collective agreements (although it is always possible for individual contracts of employment to contain clauses that are more favourable to workers) are not compatible with the obligation to promote collective bargaining set out in Article 4 of the Convention. The Committee accordingly requested the Government to examine, after consulting the social partners, the revision of this provision so as to bring it into compliance with Article 4 of the Convention.

The Committee notes that, with reference to section 444 of the CLT, the Government indicates that: (i) this provision concerns a very small proportion of workers (around 2 per cent of the active population) who enjoy sufficient autonomy to defend their rights adequately through individual negotiation; (ii) the content of collective agreements is generally of little use to this category of employees as their situation is not generally covered by collective bargaining; (iii) the workers covered by section 444 of the CLT continue to benefit from the guarantee of the fundamental rights enumerated in section 611-B of the CLT; and (iv) nothing in Article 4 of the Convention prohibits individual contracts of employment from derogating from the content of collective labour agreements. The Committee recalls in this respect that the obligation to promote collective bargaining set out in Article 4 of the Convention requires that the individual negotiations of the terms of the contract of employment cannot derogate the collective agreements applicable to the employer, on the understanding that contracts of employment can always set out more favourable terms and conditions of work and employment. The Committee recalls that this principle is explicitly set out in the Collective Agreements Recommendation, 1951 (No. 91). While emphasizing that the collective bargaining machinery can take into account the specific needs and interests of different categories of workers who may, if they so wish, be represented by their own organizations, the Committee recalls that the present Convention is fully applicable to the workers covered by section 444 of the CLT in so far as, under the terms of Articles 5 and 6, only the armed forces and the police (Article 5) and public servants engaged in the administration of the State (Article 6) may be excluded from the scope of application of the Convention. The Committee therefore once again requests the Government, after consultation with the representative social partners concerned, to take the necessary measures to ensure the conformity of section 444 of the CLT with the Convention. The Committee requests the Government to provide information on any progress achieved in this respect.

Scope of application of the Convention. Autonomous and self-employed workers. In its previous comments, the Committee requested the Government to provide its comments on the allegations of the trade union organizations that the extension of the definition of self-employed workers as a result of new section 442 B of the CLT would have the effect of excluding a significant category of workers from the rights set out in the Convention. The Committee notes in this regard the Government’s indication that: (i) the Convention, even though it does not contain a definition of the concept of worker, is not by definition applicable to autonomous workers, as collective bargaining is unsuited to the occasional and independent nature of their activities; and (ii) section 442-B of the CLT has the sole aim of clarifying the criteria already existing in Brazilian legislation in relation to the definition of autonomous workers. The Committee recalls that Article 4 of the Convention establishes the principle of free and voluntary collective bargaining and the independence of the parties to negotiation for all workers and all employers covered by the Convention. With reference to self-employed workers, the Committee recalls that, in its 2012 General Survey on the fundamental Conventions, paragraph 209, it emphasized that the right to collective bargaining should also cover organizations representing self-employed workers. At the same time, the Committee is aware of the fact that the collective bargaining procedures applied in traditional labour relationships may not be adapted to the circumstances and specific conditions of the activities undertaken by self-employed workers. The Committee therefore invites the Government to hold consultations with all the parties concerned with a view to ensuring that all workers, including autonomous and self-employed workers, are authorized to participate in free and voluntary collective bargaining. Considering that such consultations are appropriate to enable the Government and the social partners concerned to identify the appropriate adaptations to be introduced into collective bargaining procedures to facilitate their application to autonomous and self-employed workers, the Committee requests the Government to provide information on the progress achieved in this regard.

Relationship between the various levels of collective bargaining. The Committee notes the indications of the ITUC relating to section 620 of the CLT, as amended by Act No. 13467. The Committee notes that, in accordance with this provision, the conditions established in collective labour accords (which are concluded under the Brazilian legislation at the level of one or more enterprises) always prevail over those contained in collective labour agreements (which are concluded under the Brazilian legislation at a broader level, such as a sector of activity or an occupation). The Committee observes that, as a result of this provision, more favourable clauses negotiated at the level of the sector of activity or occupation will in all cases be replaced by less protective clauses negotiated at the enterprise level. Recalling that, in accordance with Article 4 of the Convention, collective bargaining must be promoted at all levels and that, in accordance with the general principles set out in Paragraph 3(1) of Recommendation No. 91, collective agreements should bind the signatories thereto and those on whose behalf the agreement is concluded, the Committee requests the Government to: (i) indicate the manner in which respect for the commitments made by the social partners in the framework of agreements concluded at the level of the sector of activity or occupation are guaranteed; and (ii) provide information on the impact of section 620 of the CLT on recourse to the negotiation of collective agreements and collective accords, and on the overall coverage rate of collective bargaining in the country.

Consultations prior to the adoption of Act No. 13467. The Committee notes the detailed information provided in this regard by the Government and the social partners and observes the difference of views of, on the one hand, the trade union organizations and, on the other, employers’ organizations and the Government. While taking due note of the intense discussions that were held, with the participation of trade unions and employers’ organizations, in the two chambers of the Parliament, the Committee does not have information indicating that the Parliamentary discussion was preceded by a structured process of tripartite social dialogue intended to develop agreement on the content of the reform. In light of the necessity to ensure conformity of this reform with the Convention on various matters, the Committee invites the Government to engage in broad dialogue with the representative organizations of employers and workers in order to ensure that, in so far as possible, the reforms to be made to the legislation respecting collective bargaining are the subject of consensus with the social partners. Recalling that the Government can avail itself of ILO technical assistance, the Committee requests the Government to provide information on any developments in this respect.

2016 observation. In its previous comment, the Committee also requested the Government to provide detailed replies to the other points contained in its 2016 observation relating to: (i) adequate protection against anti-union discrimination; (ii) compulsory arbitration in the context of the requirement to promote free and voluntary collective bargaining; (iii) the right to collective bargaining in the public sector; and (iv) the subjection of collective agreements to financial and economic policy. The Committee once again requests the Government to reply to these comments, and in particular to indicate for each of them the possible impact of the 2017 reform of the labour legislation.

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

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

Adoption of Act No. 13.467. The Committee notes the joint observations of the International Trade Union Confederation (ITUC) and the Single Confederation of Workers (CUT), received on 1 September 2017, and the observations of the National Confederation of Typical State Carriers (CONACATE), received on 28 August 2017. The Committee notes that the two communications refer to the adoption, on 13 July 2017, of Act No. 13.467 to reform the Consolidation of Labour Laws (CLT) and the impact of the new Act on compliance with the Convention. The Committee notes that, in their observations, the trade unions referred to above state that: (i) new section 611 A of the CLT, which introduces into Brazilian law the general possibility, by means of collective bargaining, of derogations which reduce the rights and protection afforded by the labour legislation for workers is in violation of the provisions and purposes of the present Convention and of the Collective Bargaining Convention, 1981 (No. 154); (ii) subsection 2 of new section 611-A, by providing that the absence of compensatory measures is not a reason for the clauses of collective agreements and accords to be found void, even where they derogate from the rights set out in the law, shows that the new system established by Act No. 13.467 is not based on negotiation, but on the abdication of rights; (iii) new section 444 of the CLT is also in violation of the ILO Conventions referred to above as it permits individual derogations from the provisions of the law and of collective agreements for workers with a higher education diploma and who receive a salary at least two times higher than the ceiling for benefits from the general social security scheme; and (iv) the creation by new section 444-B of the CLT of the status of exclusive autonomous worker, allowing the status of dependent worker to be excluded even when the autonomous worker is engaged exclusively and permanently for an enterprise, denies this new category of worker the rights of freedom of association and collective bargaining recognized by the labour legislation. Finally, the trade unions emphasize that the legislative amendments introduced are unprecedented in their gravity and are contrary to the comments made by the Committee in its 2016 observation.

The Committee also notes the joint observations of the International Organisation of Employers (IOE) and the National Confederation of Industry (CNI), received on 1 September 2017, which also refer to the adoption of Act No. 13.467, in relation to which they indicate that: (i) the Act was preceded by a broad process of discussion, and the principal social partners in the country had the opportunity to be heard by Parliament; (ii) the Act is intended to strengthen collective bargaining and the application of Conventions Nos 98 and 154 by promoting free and voluntary collective bargaining and establishing greater legal security, by limiting the interventions of labour courts in relation to the matters agreed by the social partners; and (iii) it is not correct to state that the new Act strengthens collective bargaining to the detriment of workers’ protection, as new section 611-A of the CLT provides that the content of collective agreements and accords must respect the over 30 labour rights recognized in the Brazilian Constitution.

Article 4 of the Convention. Promotion of collective bargaining. Relationship between collective bargaining and the law. The Committee notes that Act No. 13.467, adopted on 13 July 2017, revises many aspects of the CLT. The Committee also notes Provisional Measure No. 808 of the President of the Republic, of 14 November 2017, which provisionally amends certain aspects of Act No. 13.467. The Committee notes that, as indicated in the observations of the various social partners, under the terms of the new Act: (i) collective agreements and accords prevail over the provisions of the law in respect, among others, of a list of 14 subjects (section 611-A of the CLT); and (ii) in contrast, collective agreements and accords cannot suspend or reduce rights in relation to a closed list of 30 points (section 611-B of the CLT). The Committee notes that this closed list of 30 points is based on the labour provisions contained in the Brazilian Constitution. It also notes that the list of subjects in respect of which collective bargaining prevails over the law includes many aspects of the employment relationship and that this list, in contrast with the list set out in section 611-B, is merely illustrative, inter alia, and that derogations by collective bargaining are therefore possible from all legal provisions, with the sole exception of the labour rights set out in the Constitution.

The Committee recalls that it emphasized in its previous comments, with reference to various bills that had been submitted to the Congress in 2015 and April 2016 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 requested the Government to take fully into account the scope and content of Article 4 of the Convention in this regard. The Committee notes with concern that new section 611-A of the CLT establishes as a general principle that collective agreements and accords prevail over the legislation, and it is therefore possible through collective bargaining not to give effect to the protective provisions of the legislation, with the sole limit of the constitutional rights referred to in section 611 B of the CLT. The Committee once again recalls in this regard that the general objective of Conventions Nos 98 and 154 and the Labour Relations (Public Service) Convention, 1978 (No. 151), 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 on collective bargaining in the public service, paragraph 298) and 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 achievement of the objectives of Convention No. 98. In light of the above, while asking the Government to provide its comments on the observations of the social partners in relation to sections 611-A and 611-B of the CLT, the Committee requests the Government to examine, following consultation with the social partners, the revision of these provisions in order to bring them into conformity with Article 4 of the Convention.

Relationship between collective bargaining and individual contracts of employment. The Committee notes that, under the terms of new section 442 of the CLT, workers who have a higher education diploma and receive a wage that is at least two times higher than the ceiling for benefits from the general social security scheme (currently around 11,000 Brazilian reals (BRL), or approximately US$3,390) will be able to derogate from the provisions of the legislation and collective agreements and accords in their individual contracts of employment. The Committee recalls that legislative provisions which allow individual contracts of employment to contain clauses contrary to those contained in the applicable collective agreements (although it is always possible for individual contracts of employment to contain clauses that are more favourable to the workers) are contrary to the obligation to promote collective bargaining, as set out in Article 4 of the Convention. While requesting the Government to provide its comments on the observations of the social partners in relation to section 442 of the CLT, the Committee requests the Government to examine, after consulting the social partners, the revision of this provision so as to bring it into compliance with Article 4 of the Convention.

Scope of application of the Convention. The Committee notes the allegations made in the observations of the trade unions that the extension of the definition of autonomous worker, as a result of new section 444-B of the CLT, will have the effect of excluding workers covered by that definition from the trade union rights recognized in both the legislation and the Convention. Recalling that the Convention applies to all workers, with the sole possible exception of the police and the armed forces (Article 5) and public servants engaged in the administration of the State (Article 6), the Committee requests the Government to provide its comments on the observations of the trade unions in relation to the impact of section 444-B of the CLT. The Committee also requests the Government to provide information on the other aspects of Act No. 13.467 relating to the rights enshrined in the Convention.

The Committee invites the Government to provide in its next report a detailed reply to the present comments, as well as to the other points contained in the 2016 observation in relation to the Convention.

[The Government is asked to reply in full to the present comments in 2018.]

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

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.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 1 of the Convention. Protection against anti-union discrimination. The Committee recalls that in its previous direct request it expressed the hope that, in the context of the work of the Labour Relations Council (CRT), it would be possible to prepare draft legislation explicitly setting out remedies and sufficiently dissuasive sanctions against acts of anti-union discrimination. The Committee notes the Government’s indication that in the CRT discussions have gone further concerning a Bill to prohibit anti-union practices in the country and that, in this connection, the issue of anti-union discrimination was addressed at a seminar organized by the Ministry of Labour and Employment with ILO support. The Committee requests the Government to provide information in its next report on any progress in this respect and reminds it that it can have recourse to the technical assistance of the Office, if it so wishes.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee requested the Government to take measures to amend Act No. 10192 of February 2001 concerning 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, so that the parties to collective bargaining can decide freely whether they wish to agree on automatic wage adjustment, particularly in collective agreements of long duration. While noting that the Government does not refer to this matter in its report, the Committee recalls that the parties to collective bargaining should be able to decide freely and voluntarily whether they wish to agree on automatic wage adjustments, particularly in collective agreements of long duration, and that limitations on collective bargaining in relation to economic matters should only be possible in the event of exceptional circumstances with a view to protecting jobs and the sustainability of enterprises or institutions. The Committee once again requests the Government to take the necessary measures to amend the legislation as indicated above, in so far it limits the possibilities of the parties in wage bargaining. The Committee asks the Government to provide information in its next report on any progress achieved in this respect.

Finally, the Committee notes the various measures adopted by the authorities to promote the application of the provisions of the Convention, including significant measures relating to mediation and tripartite activities.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes the comments made in 2013 by the International Trade Union Confederation (ITUC) and the Single Confederation of Workers (CUT), which refer to matters already raised by the Committee and contain allegations of anti-union practices in the media, banking and chemicals sectors. The Committee requests the Government to provide its observations on all of these comments and once again requests it to indicate the outcome of the judicial inquiries conducted in relation to the killings of the trade union leaders reported by the ITUC (and the alleged killings of 11 trade unionists between 1993 and 2009 denounced in 2009 by the Força Sindical, the Nova 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). The Committee also notes the comments of the Union of Hotel, Bar and Allied Workers of São Paulo and Region (SINTHORESP) of 2013 alleging that trade unions were hindered from defending the interests of workers with disabilities and participating on their behalf in the process of negotiation in an enterprise in the food sector. The Committee requests the Government to provide its observations thereon.

Article 4 of the Convention. Compulsory arbitration. The Committee once again requests the Government to indicate whether it is 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 in its next report on developments relating to the draft trade union reform referred to previously.

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 observes that the Government reiterates information concerning the creation in September 2010 of the Labour Relations Council (CRT) which is a tripartite body based on equal representation that advises the Ministry of Labour on issues of importance in the world of work (for example, concerning the updating of legislation, the promotion of collective bargaining, the settlement of disputes, etc.). While recalling that in its previous observation it noted that, in relation to this issue, 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 requests the Government to indicate in its next report whether the bill in question has been set aside and, if so, to provide information on any measures adopted with a view to granting public employees who are not engaged in the administration of the State the right to collective bargaining with a view to concluding collective agreements.

Subjection of collective agreements to financial and economic policy orientations. The Committee recalls that for years it has been referring 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 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 regrets the lack of information provided by the Government on this subject and once again requests it to take measures to repeal any legislative or constitutional provisions which restrict the right to collective bargaining, such restrictions only being admissible as exceptional measures within the context of a serious economic crisis, namely in cases of serious and insurmountable difficulty, for the preservation of jobs and the continuity of enterprises and institutions. The Committee requests the Government to provide information in its next report on any measure adopted in this respect.

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

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

Article 1 of the Convention. Protection against anti-union discrimination. The Committee notes the Government’s reference in its report to the provisions of the Constitution of the Republic and the Consolidation of Labour Laws which, in its view, give effect to this Article of the Convention. In its previous comments, the Committee noted the various complaints examined by the Committee on Freedom of Association (Cases Nos 2635, 2636 and 2646) and observed that, in the context of these cases, the Government had indicated that:

Repetition

... 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 this case; in order to resolve the issue the Government, together with workers and employers within the National Labour Forum (FNT), has prepared a proposal for trade union reform (No. 369/05, currently in the final stages before the National Congress) which contains a more complete definition of anti-union acts and provides for penalties which may be imposed on offenders by the Ministry of Labour and Employment; the draft Bill on trade union relations currently before the National Congress contains a list of situations which constitute anti-union conduct (making recruitment or continued employment subject to membership, non-membership or termination of membership of a trade union organization, dismissing or discriminating against a worker on the grounds of his or her membership or activities in a trade union organization, participation in a strike or representation in the workplace, etc.); any sound proposal to resolve this issue must reflect the provisions of Conventions Nos 98 and 135 and establish effective mechanisms for the imposition of penalties on offenders, a point which raises differences of opinion between the representatives of employers and workers as to the amount of the fines to be imposed for anti-union conduct; the proposal put forward by the FNT fills the legislative gap by defining more fully the anti-union acts which may be committed by employers and workers, while at the same time imposing penalties which ensure the effectiveness of the legislation; and it was not possible to achieve a consensus in the FNT on the issue of penalties, in particular with regard to the amount of the fine to be imposed for anti-union conduct, but while this has delayed the passage of the draft Bill, it has in no way diminished the Government’s expectation that the draft will be approved as soon as possible.

The Committee previously expressed the hope that, in the context of the draft trade union reform to which the Government referred, remedies and sufficiently dissuasive penalties against acts of anti-union discrimination would be established explicitly with a view to ensuring that effect is given in practice to Article 1 of the Convention. The Committee notes the Government’s indication in its report that: (1) with a view to proposing and implementing the trade union and labour reform, the Government established the Labour Relations Council (CRT) (an advisory tripartite and joint collegial body); (2) the role of the Council is to issue opinions on proposals made for the purpose of democratizing industrial relations in the country, updating trade union and labour legislation, promoting collective bargaining, the self-resolution of labour disputes, the creation of an environment conducive to the generation of employment and decent work through dialogue and negotiations with the Government; (3) two meetings of the CRT were held in 2011 to approve its internal rules; and (4) proposed draft legislation on employment relations and trade union organization has not yet been submitted. The Committee hopes that, in the context of the work of the CRT, it will be possible to prepare draft legislation explicitly setting out remedies and sufficiently dissuasive sanctions against acts of anti-union discrimination. The Committee requests the Government to provide information in its next report on any progress in this regard.

Article 4. In its previous comments, the Committee requested the Government to take measures to amend Act No. 10192 of February 2001 concerning 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 or “dissidios coletivos”, so that the parties to collective bargaining can decide freely whether they wish to agree on automatic wage adjustment, particularly in collective agreements of long duration. Noting that the Government does not refer to this matter in its report, the Committee recalls that the parties to collective bargaining should be able to decide freely and voluntarily whether they wish to agree on automatic wage adjustments, particularly in collective agreements of long duration. Under these conditions, the Committee once again requests the Government to take the necessary measures to amend the legislation as indicated above, insofar as it limits the possibilities of the parties in wage bargaining.

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

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.

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

Article 1 of the Convention. The Committee notes that the Government refers in its report to the provisions of the Constitution of the Republic and the Consolidation of Labour Laws, which give effect to this Article of the Convention. In this regard, the Committee notes various complaints examined by the Committee on Freedom of Association (Cases Nos 2635, 2636 and 2646) alleging acts of anti-union discrimination. The Committee observes that in the context of these cases the Government 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 this case; in order to resolve the issue the Government, together with workers and employers within the National Labour Forum (FNT), has prepared a proposal for trade union reform (369/05, currently in the final stages before the National Congress) which contains a more complete definition of anti-union acts and provides for penalties which may be imposed on offenders by the Ministry of Labour and Employment; the draft Bill on trade union relations currently before the National Congress contains a list of situations which constitute anti-union conduct (making recruitment or continued employment subject to membership, non-membership or termination of membership of a trade union organizations, dismissing or discrimination against a worker on the grounds of his or her membership or activities in a trade union organizations, participation in a strike or representation in the workplace, etc.); any sound proposal to resolve this issue must reflect the provisions of Conventions Nos 98 and 135 and establish effective mechanisms for the imposition of penalties on offenders, a point which raises differences of opinion between employers and workers as to the amount of the fines to be imposed for anti-union conduct; the proposal put forward by the FNT fills the legislative gap by defining the anti-union acts which may be committed by employers and workers, while at the same time imposing penalties which ensure the effectiveness of the legislation; and it was not possible to achieve a consensus in the FNT on the issue of penalties, in particular with regard to the amount of the fine to be imposed for anti-union conduct, but while this has delayed the passage of the draft Bill in the National Congress, it has in no way diminished the Government’s expectation that the draft will be approved as soon as possible.

In these circumstances, the Committee hopes that, in the context of the draft trade union reform to which the Government refers, remedies and sufficiently dissuasive penalties against acts of anti-union discrimination will be established explicitly with a view to ensuring that effect is given in practice to Article 1 of the Convention. The Committee requests the Government to provide information in its next report on any measure adopted in this respect.

Article 4 of the Convention. In its previous direct request, the Committee asked the Government to indicate the provision by which Decree No. 3735 of 24 January 2001 is considered to have tacitly repealed Decree No. 908 of 31 August 1993 (the latter Decree establishes restrictions on collective wage bargaining in public and mixed enterprises, making real wage increases contingent upon certain criteria, such as increased productivity, the distribution of dividends or the alignment of the overall remuneration of employees with current levels in the labour market). The Committee takes due note of the Government’s indication that, in accordance with the Act introducing the Civil Code, when a subject is regulated by a new provision, the previous provision is automatically repealed; accordingly, with the adoption of Decree No. 2735 of 2001, establishing general rules relating to State enterprises, Decree No. 908 of 1993 is considered to be repealed.

In its previous comments, the Committee also requested the Government to take steps to amend Act No. 10192 of February 2001, concerning 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 or dissidios colectivos, so that the parties to collective bargaining can decide freely whether they wish to agree on automatic wage adjustment, particularly in collective agreements of long duration. The Committee notes the Government’s indication that, in contrast to the comments of the Committee, the intention of this provision, in addition to avoiding the re-indexing of the economy, was to promote free bargaining between the parties, as it is for the parties to determine wage adjustments in each category. The Government adds that account also needs to be taken of the issue of inflation which, even though at a lesser level, still affects the Brazilian economy. According to the Government, the prohibition on the automatic adjustment of wages does not restrict the freedom of bargaining between the parties. In this respect, the Committee considers that the parties to collective bargaining should be able to decide freely and voluntarily whether they wish to agree on automatic wage adjustments, particularly in collective agreements of long duration. In these circumstances, the Committee requests the Government to take the necessary measures to amend the legislation as indicated above, in so far as it limits the possibilities of the parties in wage bargaining.

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

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.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report and observes that this does not make any reference to the matters raised in its previous direct request.

The Committee therefore requests the Government once again to indicate in its next report the provision by which Decree No. 3735 of 24 January 2001 is considered to have tacitly repealed Decree No. 908 of 31 August 1993 establishing restrictions on collective wage bargaining in public and mixed enterprises, making real wage increases contingent upon certain criteria such as increased productivity, the distribution of dividends or the alignment of the overall remuneration of employees with current levels in the labour market.

The Committee also requests the Government to take steps to amend Act No. 10192 of February 2001 concerning additional measures under the Real Plan, section 13 of which provides that automatic price index-related wage increases or adjustments may not be included in agreements or “dissídios coletivos” so that the parties to collective bargaining can decide freely whether they wish to agree on automatic wage adjustments, particularly in collective agreements of long duration. The Committee requests the Government to provide information in its next report on all steps taken to this end.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report.

The Committee recalls that in its previous observation it noted the comments from the International Confederation of Free Trade Unions (ICFTU), now the International Trade Union Confederation (ITUC), referring to the exclusion of collective bargaining in subcontracting enterprises; the imposition of court awards in collective bargaining at the request of a single party; the dismissal of trade union leaders in violation of their trade union immunity; the formulation of blacklists; the murder of leaders of rural workers’ organizations and one trade unionist in the footwear sector. In this respect, the Committee notes that the Government: (1) states that the national legislation does not prevent workers in subcontracting enterprises from forming trade unions and, once registration has been obtained from the Ministry of Labour and Employment, they can engage in collective bargaining. Numerous service enterprise trade unions exist in the country, including those which provide services by means of subcontracting; (2) states that, by virtue of Constitutional Amendment No. 45 of 2004, the agreement of both parties is required for resorting to “dissidio coletivo” (judicial arbitration); and (3) refers to the legislative provisions which afford protection to unionized workers. The Committee observes that the Government has not supplied any information on the alleged acts of violence, and it recalls that freedom of association may only be exercised in a situation where fundamental human rights are fully respected and guaranteed, in particular those relating to human life and safety. The Committee requests the Government to launch investigations in this respect, with a view to clarifying the facts and imposing penalties on the perpetrators.

Article 4 of the Convention. Compulsory arbitration. In its previous observation, the Committee noted that under Constitutional Amendment No. 45 of 8 December 2004 (reform of the judiciary; amendment of section 114) it was established that “dissidio coletivo” may only be resorted to if both parties agree (the judiciary may not be unilaterally called on to intervene) and requested the Government to provide information on the application of this constitutional amendment in practice. The Committee notes that the Government states that under the draft trade union reform, prepared in the context of the National Labour Forum (FNT), one of the priorities for which provision is made is the encouragement of collective bargaining at all levels and in all spheres of representation, removing the dialogue between workers and employers from the scope of the State, thereby strengthening the autonomy of the parties, and maintaining the State in its role of mediator. Under the trade union reform, labour tribunals are designed to become bodies for the voluntary settlement of disputes. The Government states 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 proposal for a preliminary draft Act on trade union relations. The Committee requests the Government to provide information in its next report on all progress made with regard to the draft trade union reform and, in particular, on 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.

Right to collective bargaining in the public sector. The Committee recalls that for several years it has been referring to the need for public employees who are not engaged in the administration of the State to have the right to collective bargaining. The Committee observes that the Government has not supplied any information in this respect. The Committee therefore urges 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 collective bargaining. In particular, recalling that it noted in its previous observation that the Government had indicated the existence of constitutional limitations on the public administration’s freedom of action, making collective bargaining in the public sector difficult, and that in June 2003, in the federal public service, the Permanent National Negotiation Board (MNNP) was formed, composed of the representation of eight ministries and all the representative bodies of federal public servants, the Committee requests the Government to indicate whether any constitutional amendments have been proposed in this regard, and to provide information on the issues addressed by the MNNP.

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 in conflict with the orientations of the Government’s economic and financial policy or the existing wages policy shall be declared null and void. The Committee notes that the Government has not supplied any information in this respect, and emphasizes 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, and 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 establishment of conditions of employment. The Committee once again requests the Government to take steps to repeal the aforementioned legislative provision and to inform it in its next report of any measure adopted in this respect.

Finally, the Committee notes the comments from the ITUC, dated 28 August 2007, reiterating some of the comments previously submitted by the ICFTU concerning the application of the Convention. The ITUC also indicates that the decisions of the National Labour Forum (FNT) submitted to the National Congress were rejected and that no government initiative exists for changing trade union structures and, in addition, refers to acts of anti-union discrimination in the education sector. The Committee requests the Government to communicate its observations in this respect.

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

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the comments of the International Confederation of Free Trade Unions (ICFTU), of 10 August 2006, referring to the exclusion of collective bargaining in subcontracting enterprises; the imposition of court awards in collective bargaining at the request of a single party; the dismissal of trade union leaders in violation of their trade union immunity; the slowness of the judicial authorities; the formulation of blacklists; the murder of leaders of rural workers’ organizations and one trade unionist in the footwear sector. In this respect, the Committee requests the Government to provide its observations on the ICFTU’s allegations. In view of the seriousness of the acts of violence reported by the ICFTU, the Committee recalls that freedom of association can only be exercised in conditions in which fundamental human rights, and in particular those relating to human life and personal safety, are fully respected and guaranteed.

The Committee also requests the Government, in the context of the regular reporting cycle, to provide its observations for the Committee’s next session in November-December 2007 on all the issues relating to the legislation and the application of the Convention in practice raised in its previous observation in 2005 (see the 2005 observation, 76th Session).

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

In its previous direct request, the Committee asked the Government to provide a copy of Decree No. 3735 of 24 January 2001 which, according to the Government’s previous report, tacitly repealed Decree No. 908 of 31 August 1993 establishing restrictions on the collective bargaining of wages in public enterprises and mixed economy enterprises, making real wage increases contingent upon certain criteria such as increased productivity, the distribution of dividends or the alignment of the overall remuneration of employees with current levels in the labour market. The Committee notes that, in its report, the Government reproduces the text of the aforementioned Decree. The Committee requests the Government to indicate in its next report under the terms of which provision of Decree No. 3735 of 24 January 2001, Decree No. 908 of 31 August 1993 is held to have been tacitly repealed.

The Committee also observes that Act No. 10192 of February 2001 respecting additional measures under the Real Plan provides in section 13 that automatic price index-related wage increases or adjustments may not be included in agreements or “dissídios colectivos”. The Committee notes that the Government states that the aim of the standard was to encourage free collective bargaining between the parties, as it is they who must establish wage adjustments for the category and points out that the exclusion of the so-called automatic indexation of wages does not represent a restriction of the free bargaining promoted by the ILO. According to the Government, the aforementioned section does not necessarily constitute an obstacle to wage adjustment to compensate for the loss of purchasing power as a result of the inflationary process which continues to affect the Brazilian economy, although to a lesser extent than previously.

The Committee requests the Government to take steps to amend the abovementioned provision so that the parties to collective bargaining can freely decide whether they wish to agree on automatic wage adjustments in particular, in collective agreements of long duration. The Committee requests the Government to provide information in its next report on all steps taken to this end.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report.

Article 4 of the Convention. Compulsory arbitration. The Committee recalls that it has been making comments for several years 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 Committee notes with satisfaction that the Government states that under the terms of Constitutional Amendment No. 45 of 8 December 2004 (Reform of the Judiciary; amendment of section 114), it was established that a "dissídio coletivo" may only be resorted to if both parties are in agreement (the judiciary may not be unilaterally called on to intervene). The Committee requests the Government to provide information on the application of this constitutional amendment in practice.

Furthermore, the Committee notes that, according to the Government, once the draft trade union reform, elaborated with a tripartite consensus within the National Labour Forum, has been adopted in the form of an act, a new dispute settlement system will be established, the basic principle of which will be to encourage the adoption of voluntary dispute settlement mechanisms, such as conciliation, mediation and arbitration - carried out by the judicial authority or a private arbitrator - (for example, section 188 of the draft establishes that, should collective bargaining concerning agreement on or renewal of a collective standard fail, the conflicting collective parties may, if in agreement, call upon the labour court, arbitrator or arbitration body in order to establish, amend or annul conditions of work). The Committee requests the Government to provide information in its next report on any development concerning the draft trade union reform and in particular concerning any provisions adopted regarding arbitration as a means of dispute settlement.

Right to collective bargaining in the public sector. The Committee recalls that for several years it has been referring to the need for public employees who are not engaged in the administration of the State to have the right to collective bargaining. The Committee notes that the Government states that: (1) as it stated previously, there are constitutional restrictions regarding the freedom of action of the public administration, which render collective bargaining in the public sector difficult; (2) a sectoral chamber has been created within the National Labour Forum to address issues specifically linked to the public sector, in particular, questions regarding trade union organizing, collective bargaining and dispute settlement; (3) the aim is to transfer the results of the discussions held in this chamber into legislative proposals to be transmitted to the Presidency of the Republic, before being presented as draft constitutional amendments before the National Congress; (4) in June 2003, the Permanent National Negotiation Board (MNNP) was established in the federal public service and is composed of representatives of eight ministries and all of the representative bodies of federal public servants; (5) the Board was established to ensure the democratization of labour relations through the establishment of a permanent collective bargaining system and one of its main aims is to search for negotiated solutions concerning the interests of both the public servants and the federal public administration; and (6) although restrictions remain, progress has been made concerning collective bargaining in the public sector.

The Committee requests 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 collective bargaining. In particular, the Committee requests the Government to indicate whether any constitutional amendments have been proposed in this regard, and to provide information on the issues addressed by the MNNP.

Finally, 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 in conflict with the orientations of the Government’s economic and financial policy or the existing wages policy shall be declared null. The Committee notes the Government’s indication that the judicial authority has considered that awards may, in certain cases, give rise to regulations to cover a legal vacuum, but that, when a law is adopted, it prevails over all other secondary sources of law (agreements, accords, etc.), rendering null and void those provisions of the collective agreement or accord which contravene a Government prohibition or regulation, or which relate to the wage policy in force. Similarly, wage adjustments agreed on as part of collective agreements are concluded between the parties in accordance with the real situation at the time, striking a balance between the capacity of enterprises to pay and the fact that, in a new and fundamentally different socio-economic context from when an accord was concluded, it cannot be expected that a condition that is incompatible with the new situation could remain unchanged.

In this regard, the Committee emphasizes that, except in exceptional circumstances, it is the parties to the collective bargaining process who are best placed to determine wages and 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 establishment of employment conditions. In these conditions, the Committee once again requests the Government to take measures to repeal the aforementioned legislative provision and to inform it in its next report of any measure adopted in this respect.

The Committee is addressing a request on certain other points directly to the Government.

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

The Committee once again asks the Government to provide in its next report a copy of Decree No. 3735 of 24 January 2001 which, according to the Government’s previous report, tacitly repealed Decree No. 908 of 31 August 1993 establishing restrictions on the collective bargaining of wages in public enterprises and mixed economy enterprises, making real wage increases contingent upon certain criteria such as increased productivity, the distribution of dividends or the alignment of the overall remuneration of employees with current levels in the labour market.

Lastly, the Committee notes that Act No. 10192 of February 2001 respecting additional measures under the Real Plan (economic stabilization programme) provides in section 13 that automatic price index-related wage increases or adjustments may not be included in agreements or "dissídios colectivos". In this connection, the Committee recalled in its General Survey on freedom of association and collective bargaining, 1994, that "if, under an economic stabilization or structural adjustment policy, that is, for imperative reasons of national economic interest, wage rates cannot be fixed freely by means of collective bargaining, these restrictions should be applied as an exceptional measure and only to the extent necessary, should not exceed a reasonable period and should be accompanied by safeguards to protect effectively the standard of living of the workers concerned, in particular those who are likely to be the most affected" (paragraph 260). In these circumstances, and in view of the fact that three years have elapsed since the adoption of the said Act, the Committee requests the Government to take steps to amend the abovementioned provision so as to encourage free and voluntary collective bargaining between the parties. The Committee requests the Government to provide information in its next report on all steps taken to this end.

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

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.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information sent by the Single Confederation of Workers (CUT) in a communication of 10 October 2002, raising questions on the application of the Convention. The Committee requests the Government to send its observations thereon in its next report so that it may examine these questions, as well as other questions pending, at its next meeting.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report.

The Committee recalls that in its previous direct request it referred to Decree No. 908 of 31 August 1993, which restricts collective bargaining for employees in public enterprises and mixed economy enterprises, and makes real increases in wages conditional on certain criteria, such as increased productivity, the distribution of dividends or bringing the overall remuneration of the employees into line with current levels on the labour market. The Committee notes the Government’s indication that: (1) the Decree in question has been tacitly repealed by Decree No. 3735 of 24 January 2001, which establishes guidelines applicable to federal state enterprises; and (2) that, in practice, in accordance with the relevant decrees of the Ministry of Planning, Budget and Management, the ministries responsible for federal state enterprises are issued with the parameters, criteria and indicators to be observed in collective bargaining, particularly with regard to the operations of the enterprise, wage levels in the labour market and the impact of wages on public expenditure. The Committee requests the Government to provide a copy of Decree No. 3735 of 24 January 2001 in its next report.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report.

Article 4 of the Convention. 1. The Committee notes that for several years it has been referring to the need to repeal section 623 of the Consolidation of Labour Laws (CLT), under the terms of which provisions of an agreement or pact shall be declared void where they are contrary to the standards established by the Government economic policy or the wage policy in force. The Committee notes, with reference to sections 611 to 625 of the CLT, the Government’s indication that in recent years the Executive Authority has sent to the National Congress various draft texts to amend the labour legislation, the central aspect of which is the promotion of negotiation as a means of resolving conflicts between employers and workers. In this respect, the Committee requests the Government to indicate whether any of the draft texts in question envisages repealing section 623 of the CLT and, if not, to take measures to repeal it. The Committee requests the Government to provide information in its next report on any measure taken in practice in this respect.

2. The Committee also notes the Government’s indication that, with a view to overcoming obstacles to freedom of association, the Executive Authority submitted to the National Congress a proposed constitutional amendment (623/98) which, among other matters, envisages the revision of the normative power of the judicial authority and entrusting it with carrying out voluntary arbitration, at the request of both parties, in the event of collective disputes of an economic nature. Indeed, the Committee notes that, in the context of Title VI of the Consolidation of Labour Laws respecting collective labour agreements, it is envisaged in section 616 that, in the event of refusal to engage in collective bargaining, the trade union or the enterprises may have recourse to a "dissídio coletivo" (a procedure before the judicial labour authority) and, where an agreement, pact or award is in force, the "dissídio coletivo"must be lodged 60 days before the expiry date so that the new instrument can enter into force upon such date. The Committee also recalls that, during the technical assistance mission carried out by the Office in 1999, a clear decrease had been noted in recourse to the judicial authorities in the above context. In these conditions, although noting that over three years have elapsed since the submission of Bill No. 623/98, the Committee requests the Government to inform it in its next report of the situation with regard to this text. Furthermore, in the event that the above Bill has not been pursued, the Committee requests the Government to take measures to amend section 616 of the CLT in order to limit recourse to arbitration by the judicial authority to those cases in which it is requested by both parties, in essential services in the strict sense of the term and when, after prolonged negotiation, it is clear that the deadlock in the negotiations cannot be overcome without an initiative by the authorities. The Committee requests the Government to provide statistical information on recourse to the mechanism of "dissídio coletivo".

Articles 4 and 6. 3. The Committee recalls that for many years it has been referring to the need for public servants not engaged in the administration of the State to benefit from the right to collective bargaining. The Committee notes the Government’s statement that: (1) public servants do not enjoy the right to collective bargaining and their terms and conditions of employment are established by law; and (2) there is the possibility that certain categories of public servants considered to be atypical (in state enterprises or joint venture companies) can have recourse to collective bargaining to modify their terms and conditions of employment, but that the utilization of such machinery nevertheless depends on an administrative reform and that the standards that are adopted are intended to regulate labour relations in specific public sectors. The Committee recalls that in its previous observation it noted from the report of the technical assistance mission in 1999 that the recognition of this right for all categories of public servants would entail a constitutional amendment and that the Executive Secretary for Labour had indicated to the mission that discussions on collective bargaining for independent entities and public foundations could take place within the framework of the new administrative reform model and process, since these entities are not included within basic state functions. In these conditions, the Committee requests the Government to provide information in its next report on any measures that are adopted so that the public servants concerned benefit from this right in practice.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes that Decree No. 908 of 31 August 1993 restricts collective bargaining for employees in public enterprises and mixed economy enterprises and makes real increases in wages conditional on certain criteria, such as increased productivity, the distribution of dividends or the bringing of overall remuneration of the employees into line with current levels in the labour market. The Committee requests the Government to provide information on the manner in which this Decree is applied in practice.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report. It also observes that a technical assistance mission took place in the country from 26 to 30 April 1999, and it notes the information communicated by the Government in this regard.

1. Article 4 of the Convention. Nullity of the provisions of an agreement or pact where these are contrary to the standards established by the government economic policy or the wage policy in force (section 623 of the Consolidation of Labour Laws (CLT)). The Committee notes that it is clear both from the Government's report and from the report of the mission that the Government and the social partners are in agreement on the formal repeal of this section, which is not applied in practice, and that the Government envisages an early reform of the legislation. The Committee hopes that this repeal will be undertaken in the near future.

2. Articles 4 and 6. Right to collective bargaining of public servants not employed in the administration of the State. The Committee notes from the report of the mission that the recognition of this right for all categories of public servants would entail a constitutional amendment. The Committee also observes that the Executive Secretary for Labour indicated to the mission that discussion on collective bargaining for independent entities and public foundations could take place within the framework of the new administrative reform model, since these entities are not included within basic state functions.

3. Lastly, the Committee notes that during the mission the need was identified to organize a tripartite seminar with the participation of the ILO to discuss the subject of collective bargaining in general, in particular covering bargaining in the public administration and in the public sector.

4. The Committee requests the Government to provide information in its next report on all measures adopted on the abovementioned questions.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee observes that, with regard to the various questions raised in its previous observation, the Government has provided a report, although this was not requested for the present meeting. The Committee proposes to examine the report at its next meeting during the regular reporting cycle on the application of the Convention. The Committee notes with interest that the Government is ready to receive an ILO technical mission in April 1999.

With regard to the comments made by the Sindicato dos Arrumadores de Sao Sebastiao and the Sindicato dos Estivadores de Sao Sebastiao in June 1997, the Committee notes the discussions on the application of the Convention by Brazil that took place in the Conference Committee in June 1998, and the Government's reply to the unions' comments. The trade unions in question state that: (i) the Government, citing the deregulation of port activities, promulgated Federal Act No. 8630/93 concerning regulations governing the operation of organized ports and port facilities, which repeals section VII of the Consolidation of Labour Laws and other relevant decrees and therefore constitutes a retrograde step; and (ii) the Government is not taking any measures in response to the reluctance of employers in the sector to conclude some form of collective labour agreement, although according to Federal Act No. 8630/93 an instrument of this type is necessary.

The Committee notes that the Government states in reply to these comments that: (i) modernization of the port system is necessary, which is why Act No. 8630/93 of 25 February 1993 (known as the Ports Act) was enacted: the Act provides for changes in the regulations governing the operation of ports and ends the labour monopoly enjoyed by the unions in the port sector; (ii) since legislative changes have meant that workers in the sector must come to terms with a new situation, an executive group for the modernization of the ports was set up to develop, implement and monitor a comprehensive modernization programme, one element of which is a government plan of action for the port sector whose objectives include that of strengthening the process of collective bargaining; (iii) the executive group for the modernization of the ports noted in its assessment of the labour situation in the ports that the process of collective bargaining requires a strengthening of the mediation and supervisory role of the public authorities, since flagrant abuses by both parties are to be found at some ports; (iv) in order to achieve the plan's objectives, a tripartite working group is to be set up to propose specific solutions; and (v) the Ministry of Labour will plan a number of initiatives to provide protection for workers in the port sector, and undertakes among other things to draw up a draft standard-setting instrument on labour relations in the port sector.

The Committee notes the Government's information. The Committee recalls that Convention No. 98 "should not in any way be interpreted as authorizing or prohibiting trade union security clauses and that such questions are matters for regulation in accordance with national law and practice" (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 205). The Committee observes furthermore that under the terms of Act No. 8630/93, a collective contract, accord or agreement takes precedence over decisions of the authority which is responsible among other things for the administration of labour supply in the port sector (section 18 of the Act). The Committee notes in this regard that according to the trade union organizations, employers in the sector refuse to enter into any collective labour agreement and that the Government acknowledges the existence of abuses by both parties in the port sector in the area of collective bargaining. Under these circumstances, noting also that the Government has taken note of deficiencies in the collective bargaining system in the port sector, the Committee requests the Government to take measures in accordance with Article 4 of the Convention to encourage and promote the full development and utilization of machinery for voluntary negotiations between employers or employers' organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements in the port sector, and hopes that this matter will be settled satisfactorily in the near future. The Committee also calls on the parties to act accordingly.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the Government's report.

The Committee also notes the comments made by the Sindicato dos Arrumadores de Sao Sebastiao and the Sindicato dos Estivadores de Sao Sebastiao of June 1997 on the application of the Convention and requests the Government to include its observations on the matter in its next report.

Article 4 of the Convention. The Committee recalls that in its previous observation it referred to section 8(2) of Interim Provision No. 1079 containing supplementary provisions to the "Real Plan" (the Economic Stabilization Plan adopted in 1994), which provides that in the event that no substitute price index has been established, and where the parties have not agreed on one, a measure of the price index covering the whole nation shall be used as set out in regulations to be issued by the Executive Authority. In this respect, the Committee notes that the Government indicates in its report that section 8 of the Interim Provision in question (currently No. 1540-25 of 11 June 1997, not No. 1079) does not apply to collective agreements, to which section 10 applies and provides that wages and other conditions of employment shall continue to be determined through free collective bargaining.

In this regard, observing that section 10 of the Interim Provision mentioned in the previous paragraph provides that wages shall be determined by free collective bargaining, the Committee requests the Government to inform it as to whether this Interim Provision has temporarily suspended section 623 of the "Consolidation of Labour Laws" (CLT), as amended by Act No. 5584 of 26 June 1970 and Legislative Decree No. 229 of 28 February 1967, which section confers extensive powers on the authorities to cancel collective agreements or arbitration awards that are not consistent with the rules set by the Government's wages policy which have been criticized by the Committee for several years. In any event, given that the Government stated in a report of 1996 that section 623 of the CLT is merely "virtual" and has not been applied in recent years, the Committee requests the Government to repeal formally this provision which restricts free collective bargaining.

Articles 4 and 6 of the Convention. Furthermore, the Committee recalls that in a previous direct request it referred to the need for the Government to take measures to encourage and promote the full development and use of machinery for voluntary negotiation with a view to regulating by means of collective agreements the terms and conditions of employment for public servants not engaged in the administration of the State (in 1994 the Government indicated that the Supreme Federal Court had declared unconstitutional section 240(d) of Act No. 8112 of 1990 which granted public servants this right). On this subject, the Committee notes the Government's information that various measures designed to carry out administrative reform at the federal level are before the National Congress. The Committee expresses the hope that the measures which it is intended to adopt provide that public servants who are not engaged in the administration of the State shall enjoy the right to collective bargaining of their conditions of employment. The Committee requests the Government to inform it in its next report of any measures adopted in this matter.

Finally, the Committee notes the Government's information that various Bills on collective bargaining are at various stages of consideration. On that, the Committee requests the Government to inform it in its next report of the progress of the Bills in question and to send it copies of them as soon as they are adopted.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee recalls that in its previous comments it regretted the Government's reply that public employees, even when they are not engaged in the administration of the State, may not negotiate their terms and conditions of employment collectively. In this respect, the Committee requested the Government to indicate the measures that it envisaged adopting to promote collective bargaining for this category of workers.

The Committee takes due note of the Government's indications that the Executive Authority will submit to the National Congress in the near future a draft amendment to the Constitution proposing significant changes in the organization of the State and the terms and conditions of service of public servants, in which a distinction will be made between employees engaged in the administration of the State and other public servants. It is to be hoped that the decisions adopted by Congress in this respect also cover collective bargaining in the public sector.

The Committee hopes that the above amendments will take into account the Committee's comments with a view to encouraging and promoting the full development and use of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreements for public servants not engaged in the administration of the State.

The Committee requests the Government to keep it informed of any development in this respect.

In addition, the Committee notes the comments made by the Workers' Union of Water and Sewers of Bahia and by the National Federation of Dock Workers, as well as the Government's replies.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee recalls that its previous comments referred to the following matters.

The Committee had requested the Government to provide the texts of all the provisions adopted with each report, and particularly those relating to wage policy and the fixing and adjustment of wages.

In this respect, the Committee notes that on 28 July 1995, the Government adopted Interim Provision No. 1079 containing supplementary provisions to the "Real Plan" (the economic stabilization plan adopted in 1994), governing the adjustment of wages and collective bargaining, and repealing all provisions in force on these questions up to the date of its publication. In this context, the Committee notes with interest that section 8(1) of the above Interim Provision provides that, as from 1 July 1995, the obligations and agreements based on the consumer index prices will instead be based on the index specified in each contract. Furthermore, section 10 provides that wages and other conditions of employment will continue to be determined or revised on the respective expiry date through free collective bargaining.

Nevertheless, the Committee notes that section 8(2) of Interim Provision No. 1079 provides that in the event that no substitute price index has been established, and where the parties have not agreed on one, a measure of the price index covering the whole nation shall be used as set out in regulations to be issued by the Executive Authority.

The Committee had also reminded the Government of the need to repeal the general provisions which are inconsistent with Article 4 of the Convention, and particularly section 623 of the "Consolidation of Labour Laws", as amended by Act No. 5584 of 26 June 1970 and Legislative Decree No. 229 of 28 February 1967, which confer extensive powers on the authorities to cancel collective agreements or arbitration awards that are not consistent with the rules set by the Government's wages policy.

In this respect, the Committee notes the information supplied by the Government concerning its intention to make collective bargaining a fundamental instrument of the rules of wages policy, and the indication that labour legislation in Brazil will have to undergo profound modifications in order to be in conformity with the constitutional principle of freedom of association and bargaining, as well as the new guidelines concerning the organization of production and work.

On this point, the Committee notes that on 10 August 1995 the Minister of Labour established a Permanent Commission on Labour Legislation, composed of national jurists specializing in labour law, the principal responsibility of which is to examine issues related to labour relations which, because of their importance and urgency require proposals and action by the Ministry of Labour, as well as to examine draft legislation, issue opinions on international Conventions and Recommendations and prepare reports for the ILO.

The Committee hopes that the above constitutes an appropriate framework within which the Government will adopt specific measures in the near future in order to encourage and promote, in both law and practice, the full development and utilization of machinery for voluntary negotiation between workers' and employers' organizations with a view to the regulation of terms and conditions of employment by means of collective agreements, as provided in Article 4 of the Convention.

The Committee regrets to note that the Government has not provided information on Bill No. 821 of 21 April 1991; it also notes Bill No. 1232-A/91 respecting collective bargaining. The Committee requests the Government to clarify the situation with regard to these Bills and to provide copies of them when they are adopted.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the Government's report and recalls that in its previous comments it regretted the Government's reply that public employees, even when they are not engaged in the administration of the State, may not negotiate their terms and conditions of employment collectively. In this respect, the Committee requested the Government to indicate the measures that it envisaged adopting to promote collective bargaining for this category of workers.

The Committee takes due note of the Government's indications that the Executive Authority will submit to the National Congress in the near future a draft amendment to the Constitution proposing significant changes in the organization of the State and the terms and conditions of service of public servants, in which a distinction will be made between employees engaged in the administration of the State and other public servants. It is to be hoped that the decisions adopted by Congress in this respect also cover collective bargaining in the public sector.

The Committee hopes that the above amendments will take into account the Committee's comments with a view to encouraging and promoting the full development and use of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreements for public servants not engaged in the administration of the State.

The Committee requests the Government to keep it informed of any development in this respect.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the Government's report and recalls that its previous comments referred to the following matters.

The Committee had requested the Government to provide the texts of all the provisions adopted with each report, and particularly those relating to wage policy and the fixing and adjustment of wages.

In this respect, the Committee notes that on 28 July 1995, the Government adopted Interim Provision No. 1079 containing supplementary provisions to the "Real Plan" (the economic stabilization plan adopted in 1994), governing the adjustment of wages and collective bargaining, and repealing all provisions in force on these questions up to the date of its publication. In this context, the Committee notes with interest that section 8(1) of the above Interim Provision provides that, as from 1 July 1995, the obligations and agreements based on the consumer prices index will instead be based on the index specified in each contract. Furthermore, section 10 provides that wages and other conditions of employment will continue to be determined or revised on the respective expiry date through free collective bargaining.

Nevertheless, the Committee notes that section 8(2) of Interim Provision No. 1079 provides that in the event that no substitute price index has been established, and where the parties have not agreed on one, a measure of the price index covering the whole nation shall be used as set out in regulations to be issued by the Executive Authority.

The Committee had also reminded the Government of the need to repeal the general provisions which are inconsistent with Article 4 of the Convention, and particularly section 623 of the "Consolidation of Labour Laws", as amended by Act No. 5584 of 26 June 1970 and Legislative Decree No. 229 of 28 February 1967, which confer extensive powers on the authorities to cancel collective agreements or arbitration awards that are not consistent with the rules set by the Government's wages policy.

In this respect, the Committee notes the information supplied by the Government concerning its intention to make collective bargaining a fundamental instrument of the rules of wages policy, and the indication that labour legislation in Brazil will have to undergo profound modifications in order to be in conformity with the constitutional principle of freedom of association and bargaining, as well as the new guidelines concerning the organization of production and work.

On this point, the Committee notes that on 10 August 1995 the Minister of Labour established a Permanent Commission on Labour Legislation, composed of national jurists specializing in labour law, the principal responsibility of which is to examine issues related to labour relations which, because of their importance and urgency require proposals and action by the Ministry of Labour, as well as to examine draft legislation, issue opinions on international Conventions and Recommendations and prepare reports for the ILO.

The Committee hopes that the above constitutes an appropriate framework within which the Government will adopt specific measures in the near future in order to encourage and promote, in both law and practice, the full development and utilization of machinery for voluntary negotiation between workers' and employers' organizations with a view to the regulation of terms and conditions of employment by means of collective agreements, as provided in Article 4 of the Convention.

The Committee regrets to note that the Government has not provided information on Bill No. 821 of 21 April 1991; it also notes Bill No. 1232-A/91 respecting collective bargaining, to which reference was made in the report on Convention No. 154, which has been ratified by Brazil. The Committee requests the Government to clarify the situation with regard to these Bills and to provide copies of them when they are adopted.

Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

Articles 4 and 6 of the Convention. Further to its previous comments, the Committee notes with regret the Government's reply in its report to the effect that public employees who are not engaged in the administration of the State may not negotiate their conditions of employment collectively. The Government states in this connection that the Supreme Court has declared section 240(d) of Act No. 8112 of 1990, which granted this right to public employees, to be unconstitutional.

The Committee recalls that under Article 4 of the Convention measures appropriate to national conditions must be taken to encourage and promote the full development and utilization of machinery for voluntary negotiations with a view to the regulation of terms and conditions of employment. It also recalls that it has considered that to exclude from the scope of the Convention persons employed by the State or in the public sector but who are not engaged in the administration of the State, is contrary to the meaning of the Convention.

The Committee recalls that it could not admit the exclusion from the application of the Convention of important categories of workers employed by the State merely on the grounds that they are formally assimilated to public officials engaged in the administration of the State. If this were the case, the Convention might be deprived of much of its scope. The distinction therefore must be drawn between, on the one hand, public servants who by their functions are directly engaged in the administration of the State and, on the other hand, other persons employed by the Government, by public undertakings or by autonomous public institutions. Only public servants engaged in the administration of the State can be excluded from the scope of the Convention (see 1994 General Survey of the Committee on Freedom of Association and Collective Bargaining, paragraph 200).

The Committee asks the Government to indicate in its next report the measures that it envisages to take, in accordance with the Convention, to encourage collective bargaining for this category of workers.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee notes the Government's report and the discussions that took place at the Conference Committee in 1991.

Article 4 of the Convention. Measures to encourage and promote the full development and utilization of machinery for the voluntary negotiation of collective agreements.

(a) General regime

In its previous observation, the Committee asked the Government to inform it of measures taken in the context of its economic policy to extend the scope of collective bargaining and to associate the social partners with its wages policy. The Committee notes the explanations given by a Government representative at the Conference Committee. It also notes that the above Committee expressed the firm hope that the Government would be able in its next report to inform the Committee of Experts of the measures taken, particularly as a result of the submission to Congress of a Bill on collective bargaining, in order to bring its legislation and practice into conformity with requirements of the Convention.

The Committee notes that the Government's report contains no information on this matter.

According to the information supplied by a Government representative at the Conference Committee, Act No. 6708 - which allowed certain enterprises to be exempted from wage increases laid down in agreements - had been repealed and Act No. 8178 of 1 March 1991 established rules on prices and wages, but did not reproduce the former provisions that were repealed. It was therefore the only text in force concerning wages policy. The Committee gathers that, since then, new texts on wages policy have been adopted, such as Act No. 8542 of 23 December 1992, amended by Act No. 8700 of 27 August 1993. It also notes the Government representative's statement to the Conference Committee that the Bill No. 821 of April 1981, on collective bargaining had been submitted to Congress.

Although it is aware of the country's serious economic and financial difficulties, the Committee again reminds the Government of the need to repeal the general provisions which are inconsistent with Article 4 of the Convention, in particular section 623 of the Consolidation of Labour Laws, as amended by Act No. 5584 of 26 June 1970, and Legislative Decree No. 229 of February 1967 which confers extensive powers on the authorities to cancel collective agreements or arbitration awards that are not consistent with the rules set by the Government's wages policy. The Committee again urges the Government to ensure that wage-fixing measures are adopted in the context of a dialogue between the Government and the social partners, so that an agreement on wage-fixing policy may be reached between the sectors concerned.

The Committee also asks the Government to provide specific information on Bill No. 821 of 21 April 1991 and to provide a copy of it as soon as it becomes law.

More generally, the Committee asks the Government to provide copies of all texts adopted with each report, particularly those concerning wage policy, and wage-fixing and adjustment policy.

(b) Regime governing public enterprises, mixed economy enterprises and other entities directly or indirectly controlled by the State

In its previous observation, the Committee noted that enterprises in this sector are subject to the legal regime governing private enterprises (section 173, paragraph 1, of the Constitution). In this connection, the Committee gathers that the employees of these enterprises are covered by the successive laws on wages policy, and refers therefore to the comments contained above.

The Committee notes the statement of the Government representative to the Conference Committee, to the effect that the Higher Labour Tribunal has revised its case law and quashed a decision providing that a collective agreement concluded without prior consultation with the competent official body was not binding on a mixed enterprise (resolution No. 02/90 of 19 December 1990). The Committee asks the Government to provide a copy of this resolution and to keep it informed of any developments in this area.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

Articles 4 and 6 of the Convention. The Committee asks the Government to state whether public employees, other than those engaged in administration of the State, can negotiate their conditions of employment collectively and, if so, under which legislative or regulatory provisions.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

The Committee takes note of the information supplied by the Government in its report and of the discussions held at the Conference Committee in 1989. It also takes note of the comments of the United Central Workers' Organisation (CUT) of 8 July 1990.

1. Article 1 of the Convention (Situation at the Bank of Brazil). In its comments, the CUT refers to a directive issued by the President of the Bank of Brazil, to compile a register of employees likely to be dismissed as part of the staff restructuring policy. The Committee notes that the directive draws attention, in particular, to the employees who "work the least and demand the most". The Committee considers that the selection criteria established are liable to impair the employees' right to organise which is guaranteed by the Constitution and national legislation.

Accordingly, the Committee asks the Government to provide information on the manner in which the Bank of Brazil staff restructuring policy is being applied in practice, indicating in particular whether the trade union organisations are involved in its creation and implementation and whether, in practice, any measures have been taken or are contemplated to guarantee adequate protection for these employees against all acts of anti-trade union discrimination that may arise with restructuring.

2. Article 4 of the Convention. Measures to encourage and promote the full development and utilisation of machinery for voluntary negotiation of collective agreements.

(a) General regime. In its previous observation, the Committee asked the Government to inform it of measures taken in the context of its economic policy to extend the scope of collective bargaining and to associate the social partners with its wages policy. Similar requests were also expressed in the conclusions of the Conference Committee.

With regard to the legislative restrictions contained in sections 11 and 12 of Act No. 6.708 and section 623 of the Consolidation of Labour Laws (CLT), the Government indicates in its report that wage adjustment machinery has been established by Act No. 8.030 of 12 April 1990 and by Temporary Order No. 193 of 25 June 1990. According to the Government, only the minimum wage is subject to intervention it being adjusted monthly to the consumer price index. Other wages are fixed through free negotiations, this being the only way to protect purchasing power effectively, since the experience of the past 20 years has shown that the indexation of wages and state intervention in the fixation of wages have led to a substantial reduction in their value and impairment of the freedom to negotiate. The Government states that it wishes to re-establish not only the value of wages but also the spirit of free negotiation which should prevail in negotiations relating to industrial relations. The Government also gives its assurance that it will shortly make every effort to remove all obstacles to collective bargaining.

The Committee observes that although the texts in question reaffirm the constitutional principle of free collective bargaining, they restrict collective negotiations by imposing parameters which may not be exceeded, as pointed out by the CUT whose main objection to the texts is that they make recovery of the value of wages lost by inflation impossible. The Committee also notes that the Government provides no information on any measures taken or machinery used to persuade the social partners to adhere to its economic austerity policy.

The Committee is aware of the country's serious economic and financial situation. However, it reminds the Government of the need to repeal the general provisions which are contrary to Article 4 of the Convention, i.e. section 623 of the Consolidation of Labour Laws, as amended by Act No. 5.584 of 26 June 1970 and Legislative Decree No. 229 of 28 February 1967, which confers extensive powers on the authorities to cancel collective agreements or arbitration awards that are not consistent with the rules set by the Government's wage policy, and the provisions of Act No. 6.708 of 30 October 1979 which allow enterprises demonstrating their economic inability to cope with wage increases to be excluded from the scope of agreements applying to them. The Committee once again urges the Government to ensure that all measures concerning wage fixing are adopted in the context of a dialogue between the Government and the social partners, so that an agreement on wage-fixing policy may be reached between the sectors concerned.

(b) Regime governing public enterprises, mixed-economy enterprises and other entities directly or indirectly controlled by the State. The Committee refers to the Constitution and notes that section 173, subsection 1 places the above sector under the legal regime governing private enterprises. The Committee gathers that the staff of such enterprises are covered by Act No. 8.030 of 12 April 1990 and Temporary Order No. 193 of 25 June 1990.

Accordingly, the Committee refers to its comments in the preceding paragraph. Moreover, it requests the Government to indicate the measures taken or contemplated to amend section 12 of Act No. 6.708 of 30 October 1979 whereby collective agreements in this sector may only be concluded within the terms of the resolutions of the National Council on Wage Policy, contrary to the constitutional principle of free collective bargaining and to Article 4 of the Convention.

The Committee asks the Government to keep it informed of any developments in this regard.

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

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.