Definitive Report - Report No 129, 1972

Case No 385 (Brazil) - Complaint date: 03-APR-64 - Closed

1. 59. On the last occasion when the Committee submitted an interim report on this case to the Governing Body, it had reached its final conclusions on certain allegations concerning restrictions on the exercise of the right to strike which had been submitted by the World Federation of Trade Unions in a communication dated 22 May 1969.
2. 60. As regards the outstanding allegations concerning restrictions on the right to bargain collectively and the right to elect trade union representatives freely, the Committee had recommended the Governing Body to request the Government to provide supplementary information (116th Report, paragraph 193 (b) and (c) (iii)). In a communication dated 25 October 1971 the Government supplied certain further information on the outstanding aspects of the case.
3. 61. Brazil has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Allegations concerning Restrictions on the Right to Bargain Collectively
  62. 62 With regard to these allegations, the Government was requested to supply further information as to the number of collective contracts which had come into force without any amendment of the clauses concerning wages, and the number of cases where the Minister of Labour and Social Welfare, or the labour courts, had declared such clauses null and void or ordered their amendment, and to indicate the grounds on which those decisions had been based. In this connection the Committee had noted that section 623 of the Consolidation of Labour Laws provides that any provision in a collective agreement or collective contract which directly or indirectly conflicts with any ban or rule forming part of the Government's economic and financial policy, or the wage policy currently in force, shall be null and void and not be capable of enforcement before any public authority or government department; the fact that the provision is null and void shall be declared, either automatically or on application by any party concerned, by the Minister of Social Welfare or by a labour court in proceedings brought before it. The Committee also noted that section 624 provides that the validity of any clause increasing or adjusting wage rates shall, if it implies any increase in the prices or rates controlled by any public authority or government department, be subject to prior consideration by such authority or department and to an explicit statement on its part as regards the possibility of increasing the prices or rates concerned.
  63. 63 The Committee has taken note of the information supplied by the Government under article 22 of the Constitution of the ILO, for the period ending 30 June 1970, according to which no wage agreement or adjustment has been cancelled in the past two years under section 623 of the Consolidation of Labour Laws (as amended by Legislative Decree No. 229 of 28 February 1967). The Government adds that this provision, however, forms an integral part of its economic policy, its purpose being to ensure that excessive wage settlements do not have harmful effects on the national economy. While collective bargaining is the best method of making periodical adjustments in the purchasing power of workers affected by inflation, such agreements, states the Government, must grant increases in accordance with a scale which is generally binding. Should an increase exceed the prescribed scale, it would unquestionably have an inflationary influence and be passed on to the consumer in the form of higher prices for goods or services.
  64. 64 The Government further states in this report that the Ministry of Labour and Social Welfare may authorise wage adjustments in excess of the amounts laid down in the scale, provided that the employers concerned give a clear undertaking to absorb the increase themselves and that the prices of goods and services remain unaffected thereby. The Government adds that wage adjustments have on average been greater than the rise in the cost of living, thereby reflecting the Government's efforts to bring about a gradual increase in the purchasing power of wages in general. The Government, however, states that it is unable to supply statistics concerning the number of agreements concluded in recent years since most of the adjustments are made through the labour courts. In 1968 and 1969, however, the National Wages Department replied to no fewer than 724 requests for information from various unions, employers, and its own regional offices.
  65. 65 Having considered the information supplied by the Government on the question of collective bargaining, the Committee feels obliged, however, to point out that the provisions of section 623 of the Consolidation of Labour Laws (as amended), which are part of the permanent legislation, are not fully in harmony with Article 4 of Convention No. 98, which provides that measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations with a view to the regulation of terms and conditions of employment by means of collective agreements. In this connection the Committee has, in previous cases, taken the view that if, as part of its stabilisation policy, a government considers that wage rates cannot be settled freely through collective bargaining, such a restriction should be imposed as an exceptional measure and only to the extent that is necessary, without exceeding a reasonable period.
  66. 66 The Committee accordingly recommends the Governing Body to draw the attention of the Government to the above considerations and to request the Committee of Experts on the Application of Conventions and Recommendations to keep the matter under review in its examination of reports supplied periodically under article 22 of the Constitution of the ILO.
• Allegations concerning Restrictions on the Right to Elect Trade Union Representatives Freely
  67. 67 With regard to these allegations, the Committee had noted that according to Ministerial Order No. 40 of 21 January 1965, a person who had been deprived of his political rights could not be elected to trade union office. Consequently, the Committee considered that it would be desirable to know the reasons for which, in accordance with the legislation of the country, persons might be deprived of their political rights and whether there was any possibility of appeal against measures of this kind. The Committee accordingly recommended the Governing Body to ask the Government for information on this question.
  68. 68 In its communication dated 25 October 1971, the Government refers to Institutional Act No. 5 of 13 December 1968, which forms part of the transitional provisions of the Constitution of the Federal Republic of Brazil, its general object being the defence of national institutions in exceptional circumstances. Amongst its penalty clauses, which, according to the Government, deal with activities that are subversive and contrary to national objectives, the main one provides for the suspension of political rights. No one, states the Government, can therefore be penalised under this Act as a result of legitimate trade union activities, and the suspension of the right to participate in trade union elections could only result from a more general sanction.
  69. 69 The Committee has taken note of the provisions of Ministerial Order No. 40 of 21 January 1965, according to which a person deprived of his political rights may not be elected to trade union office. The Committee has also noted from the Government's explanation that the suspension of political rights is a penalty, envisaged under Institutional Act No. 5 of 13 December 1968, in cases of activities which are subversive and contrary to national objectives. The Committee has always considered that it was not competent to examine allegations of a purely political nature, but it has also considered that it should examine measures of a political nature taken by governments in so far as such measures may indirectly affect the exercise of trade union rights. The Committee observes in the present case that, under section 4 of Institutional Act No. 5, the President of the Republic, after hearing the Council of National Security, may, in the interest of preserving the Revolution, and without being bound by the limitation provided for in the Constitution, suspend the political rights of any citizen for a period of ten years. Section 5 of the same Act provides that the suspension of political rights implies, inter alia, the suspension of the right to elect or to be elected to trade union office. Under section 10 of this Act, any judicial review of any measures taken in accordance with this Institutional Act is excluded.
  70. 70 The Committee notes that, according to the provisions mentioned in the preceding: paragraph, a person may be deprived of his political rights and, as a consequence, of his right to be elected to trade union office, by a discretionary decision of the Executive. The suspension of such rights is not dependent upon the commission of any criminal offence or other act prohibited by law and is not subject to the guarantees of judicial process, the jurisdiction of the courts being specifically excluded in any question involving the suspension of political rights under Institutional Act No. 5.
  71. 71 The Committee considers that this situation raises the more general question of the effect which limitations on civil liberties may have on the exercise of trade union rights. The Committee has emphasised in the past the importance which should be attached to the fundamental principles enunciated in the Universal Declaration of Human Rights, since violation of these principles may affect the free exercise of trade union rights. In the present case the Committee wishes to draw attention, in particular, to the principle enunciated in Article 7 of the Declaration according to which " All are equal before the law and are entitled without any discrimination to equal protection of the law ", and to the principle stated in Article 10 that " Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him ". When the International Labour Conference adopted in 1970 its resolution concerning trade union rights and their relation to civil liberties, it placed special emphasis on the right to a fair trial by an independent and impartial tribunal as being one of the civil liberties which are essential for the normal exercise of trade union rights.
  72. 72 In the circumstances, the Committee considers that the discretionary powers conferred on the Executive by Institutional Act No. 5 of 1968, in so far as they affect the exercise of trade union rights, permit interference by the authorities in the right of workers' organisations freely to elect their representatives, to organise their administration and activities and to formulate their programmes. The Committee accordingly recommends the Governing Body to point out to the Government that any interference by the authorities in the right of workers' organisations freely to elect their representatives, to organise their administration and activities, and to formulate their programmes would be incompatible with the principles of freedom of association, and that Institutional Act No. 5 of 1968 should not be applied in such a manner as to infringe those principles.

The Committee's recommendations

1. 73. In all these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) with regard to the allegations concerning restrictions on the right to bargain collectively, to draw the attention of the Government to the considerations set forth in paragraph 65 above, and to request the Committee of Experts on the Application of Conventions and Recommendations to keep the matter under review in its examination of reports supplied periodically under article 22 of the Constitution of the ILO;
   • (b) with regard to the allegations concerning restrictions on the right to elect trade union representatives freely, to point out to the Government the fact that any interference by the authorities in the right of workers' organisations freely to elect their representatives, to organise their administration and activities and to formulate their programmes would be incompatible with the principles of freedom of association and that Institutional Act No. 5 of 1968 should not be applied in such a manner as to infringe those principles.