Definitive Report - Report No 116, 1970

Case No 558 (Brazil) - Complaint date: 16-JUN-68 - Closed

1. 118. The complaint of the National Federation of Petroleum Industry Workers is contained in a communication of 16 June 1968 addressed direct to the ILO. By a letter of 3 July 1968 the text of the complaint was transmitted to the Government, which sent its observations in a communication dated 5 November 1968.
2. 119. Brazil has not ratified the Freedom of Association and Protection of the Right.to Organise Convention, 1948 (No. 87), but it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 120. The complainants state that on 28 March 1968 the votes were counted in the election held for the renewal of the Committee of Management, the Supervisory Council and the Council of Representatives of the Union of Workers in the Petroleum (Distilling and Refining) Industry of the States of Guanabara and Rio de Janeiro. The elections were held on 25, 26 and 27 March. After the counting of the votes, the complainants continue, one of the two lists that had been presented was declared by the election committee to have won.
2. 121. The complainants next state that, accepting the allegations made by those on the defeated list to the effect that there had been irregularities in the elections, the Ministry of Labour and Social Welfare applied the relevant procedure, which led to the cancelling of the elections and the setting up of a board of management to administer the union and organise new elections within ninety days.
3. 122. The complainants, who assert that the elections had been regular, allege that it was on the contrary the cancelling of the ballot and the appointment of the board of management that were characterised by irregularities. They also make detailed allegations that the board of management has acted improperly; thus, its chairman is said to have denounced various workers to the authorities for holding " subversive and anti-democratic " opinions and also to have stated that he would not hold elections within six months, since if he were to do so " the union would fall into anti-democratic hands ".
4. 123. The complainants also allege that high-ranking military officers in the service of PETROBRAS had taken steps to have obstacles raised by the Regional Labour Office of Guanabara to the holding of elections in the Union of Workers in the Petroleum (Distilling and Refining) Industry of the States of Guanabara and Rio de Janeiro during the following six months, so as to prevent the organisation, in their own words, from " being placed under the control of subversive elements ".
5. 124. It is also alleged that " the names of nearly 400 managers at various levels in PETROBRAS, who were not before then members of a trade union, had been hurriedly listed as a result of a decision at a higher level, with a view to their applying for inclusion on the list of members of the Union of Workers in the Petroleum (Distilling and Refining) Industry of the States of Guanabara and Rio de Janeiro ". Lastly, pressure had been brought to bear on some of the trade unionists returned in the first election to refrain from standing in the new elections, in return for which the management of PETROBRAS would place no further obstacles in the way of holding the elections within the period of ninety days fixed by the decision of the Ministry.
6. 125. In its reply of 5 November 1968, the Government states that the complaining organisation has no legal existence in Brazil and on these grounds refuses the request for observations that has been addressed to it. " The International Labour Organisation ", it goes on, " will understand that in this case the supply of explanations would amount to a violation of the principles that govern trade union relations in Brazil. If it recognised this federation as having enough authority to cause information to be requested at the international level, Brazil would be obliged to recognise the legitimacy of its existence at the national level too. By doing this the Brazilian Government would give a concrete demonstration of its contempt for its own laws regulating its conduct. Without implying a lack of respect for the exalted aims of the International Labour Organisation, we are bound to make this statement to protect the sovereignty of Brazil."
7. 126. When it had the case before it at its session in February 1969, the Committee, in view of the reply by the Government, wished, as on previous occasions, to recall that the non-recognition by the public authorities of a trade union organisation was not in itself sufficient reason to deprive the organisation of its right to have recourse before the Committee to the complaint procedure in respect of infringement of freedom of association. As long ago as its First Report, the Committee considered that it would be altogether inconsistent with the purpose for which the procedure for the examination of allegations concerning the infringement of trade union rights had been established for it to admit that the dissolution or non-recognition of an organisation by governmental action extinguished the right of the organisation to invoke the procedure.
8. 127. In the present case, it appears from the information available to the Committee that it was after the reporting of the facts (as they were described by the person heading the list that had originally been elected) by the Union of Workers in the Petroleum (Distilling and Refining) Industry of the States of Guanabara and Rio de Janeiro to the National Federation of Petroleum Industry Workers that the Federation lodged a complaint with the ILO. According to a statement in its communication addressed to the Director-General, this was after ascertaining that the accusations were true.
9. 128. It seems that the complainant Federation has a factual existence at least. It further appears that the union at the origin of the complaint, which was taken up on its behalf by the Federation, enjoyed some form of recognition, implicitly at any rate, since according to its allegations the elections held within the union gave rise, after the intervention of a third party, to an official act by the Ministry of Labour and Social Welfare in the form of the cancellation of these elections and the setting up of a board of management whose functions included the organising of new elections (see paragraph 121 above).
10. 129. In these circumstances, and in view of the principles recalled in paragraph 126 above, before the Committee could contemplate examining the substance of the case it considered it necessary to obtain certain additional information from the Government, principally in order to form an opinion on the question whether the complaint before it was received from an organisation competent to submit this complaint.
11. 130. The Committee therefore requested the Government to be good enough to indicate both the exact legal status of the National Federation of Petroleum Industry Workers, specifying the reasons for which, and any laws or regulations under which, this organisation has no legal existence and the exact legal status of the Union of Workers in the Petroleum (Distilling and Refining) Industry of the States of Guanabara and Rio de Janeiro.
12. 131. At the same time the Committee considered that it might have a clearer idea of the situation if it obtained certain information from the complainant Federation.
13. 132. It therefore requested the complainant organisation to provide all relevant information on its Constitution and its numerical importance in comparison with the total number of workers in the occupation represented by it and the number of unions affiliated to it, stating in particular whether the Union of Workers in the Petroleum (Distilling and Refining) Industry of the States of Guanabara and Rio de Janeiro is one of its affiliates.
14. 133. In two letters dated 4 March 1969 the parties concerned were requested to send the supplementary information referred to above in paragraphs 130 and 132.
15. 134. The Government replied by a communication dated 22 April 1969. The complainant organisation, on the other hand, did not respond to the request for information which had been sent to it. However, the Government's communication gave some of the information the Committee had wanted to find out from the complainant, showing in particular that the Union of Workers in the Petroleum (Distilling and Refining) Industry of the States of Guanabara and Rio de Janeiro had at one time been affiliated to the National Federation of Petroleum Industry Workers."
16. 135. In its reply, the Government states that the National Federation of Petroleum Industry Workers was set up on 26 June 1966 by seven petroleum unions from different states. The names of these unions are supplied. In addition to these founder unions, says the Government, five others, of which it gives the names and which include the Union of Workers in the Petroleum (Distilling and Refining) Industry of the States of Guanabara and Rio de Janeiro, later became affiliated.
17. 136. The Government then goes on to give the following information. The organisation of federations by unions is governed by section 534 of the Labour Code, which lays down that: " Not fewer than five industrial associations which represent the absolute majority of a group of identical, similar or allied activities or occupations may form a federation. " The federations shall be set up one per state; however, the Minister of Labour and Social Welfare may authorise the creation of inter-state or national federations. The Government next quotes the single paragraph of section 16 of Ministerial Decree No. 39 of 2 August 1944, which says: " Should state federations wish to set up an inter-state or national federation, they must first obtain permission, as mentioned in this Section."
18. 137. The Government states that the National Federation of Petroleum Industry Workers began by committing a breach of these regulations, inasmuch as the founder unions failed to ask the Ministry for permission in accordance with the law despite the fact that they were based in different states.
19. 138. In spite of this infringement, declares the Government, the Minister of Labour and Social Welfare agreed to investigate the Federation's request for recognition, which was handled in accordance with the normal procedure.
20. 139. " When the appeal was investigated by the Trade Union Guidance Committee ", states the Government, " the Committee (a collegiate body in which various government departments are represented, together with employers and workers in equal numbers) was unanimous in rejecting it." The Government adds that, when the matter was referred to the Minister of Labour and Social Welfare, he decided, taking into account the views expressed by the National Department of Labour, to reject the request for recognition lodged by the National Federation of Petroleum Industry Workers. The decision was dated 20 February 1967.
21. 140. " From then on ", says the Government, " the so-called National Federation had no vestige of a claim to official existence. While, before this ruling, it might conceivably have had some claim to future recognition, its appeal was finally rejected by the Minister. It follows that this body cannot act as a federation and is not even entitled to call itself one."
22. 141. From the detailed explanations supplied by the Government it would appear that the reason for the decision to refuse recognition to the National Federation of Petroleum Industry Workers was that the founder unions did not conform to the exigencies of the law (see paragraphs 136 and 137 above), and that this is ultimately why the aforementioned federation has no official existence in the country concerned.
23. 142. Without denying that this may be the case according to current national legislation, the Committee feels obliged to point out that the conditions which this legislation lays down for the organisation of federations, and in particular the condition that founding unions based in different states must first ask permission (which may be refused) from the Minister of Labour and Social Welfare, are incompatible with the generally accepted principles of freedom of association, which include the right of trade unions to form such federations as they see fit.
24. 143. Moreover, since the union referred to in the complaint, namely the Union of Workers in the Petroleum (Distilling and Refining) Industry of the States of Guanabara and Rio de Janeiro, seems to have a perfectly normal legal existence (see below), and since the Government chose to reply concerning the basis of the allegations, the Committee considered it timely to investigate the latter.
25. 144. Concerning these allegations, which are analysed in paragraphs 120 to 124 above, the Government gives the following information. Elections were held by the Union of Workers in the Petroleum (Distilling and Refining) Industry of the States of Guanabara and Rio de Janeiro for the renewal of its administrative and representative organs. There were two rival lists of candidates. After the elections, the losing side complained that many members had been prevented from voting by underhand means, which had affected the outcome of the vote in a sense unfavourable to the losers.
26. 145. The Government goes on to state that, recognising that the complainants were well justified in appealing, the Minister of Labour and Social Welfare gave the following ruling:
    • In accordance with the views expressed by the National Department of Labour, and in view of the fact that the voting booths were closed two hours before the advertised time, while the difference in the number of votes cast for the rival lists was less than the number of union members who did not vote, I HEREBY DECREE, in accordance with section 48 (a) of Ministerial Ordinance No. 40 of 21 January 1965 that the validity of the appeal against the outcome of the elections, and of the request that these elections shall be declared null and void, shall be upheld.
    • Hence I authorise the Regional Representative of the Department of Labour in the State of Guanabara to appoint another governing body for the union in question, this governing body to administer the affairs of the union and to organise fresh elections within ninety (90) days.
    • (Signed) Jarbas Passarinho 26 April 1968
27. 146. The Government declares that the object of this decision was purely and simply the holding of " new, authentic and honest elections in which the views of the majority of the members of the union (could) find full expression ".
28. 147. The Government says that the legislation governing elections in trade unions empowers the Minister of Labour and Social Welfare to appoint a governing body to run the affairs of the entity concerned, should a vote be pronounced null and void because of some fault or failing on the part of the union's officers, or when, the officers' terms of office having expired, fresh elections cannot be organised under the same management. The Minister, states the Government, accordingly authorised his Regional Representative in the State of Guanabara to run the union in question pending fresh elections, by appointing a governing body. This latter was made up of members of the union concerned, chosen amongst those who seemed most likely successfully to perform the duties provided for in the Ministerial Ordinance cancelling the former elections. The Government draws attention to the fact that the Minister left the union under the management of its own members, and did nothing to delay the holding of fresh elections. It states that although these were not in fact held within the time-limit specified, this was due to internal reasons (dissensions within the union's representative assembly).
29. 148. The Government declares that the administrative position of the Union of Workers in the Petroleum (Distilling and Refining) Industry of the States of Guanabara and Rio de Janeiro returned to normal following authentic elections held on 18, 19 and 20 November 1968 and the newly elected chairman's assumption of office on the 28th of the same month.
30. 149. " The union in question ", concludes the Government, " is now in full enjoyment of the rights bestowed by the law on bodies representing occupations or classes. The reasons why a provisional governing body had to be appointed no longer apply, and the union is now running normally, its affairs being managed by its own, properly elected members."
31. 150. From the information furnished by the Government it appears that the elections held by the union in question in March 1969 (see paragraph 120 above) were considered improper, and that the labour authorities annulled them and appointed a provisional governing body to organise fresh elections.

B. B. The Committee's conclusions

1. 151. The Committee has already had occasion to investigate the question of intervention by governmental authorities in trade union elections following irregularities in the way they were conducted which had led the authorities to annul them. On that occasion, the Committee considered that the action taken by the administrative authorities in suspending the results of an election might appear arbitrary even when provisional and temporary and even when followed by judicial action. As in the past, the Committee considers that the principle of freedom of association does not prevent the exercising of control over the internal acts of a trade union when they infringe judicial or statutory rulings; but it also considers it of paramount importance, in order to guarantee an impartial and objective procedure, that such control should be exercised by the competent judicial authority.

The Committee's recommendations

1. 152. In these circumstances, inasmuch as the intervention of the administrative authorities in the present case was in accordance with the regulations relevant to trade union elections, the Committee recommends the Governing Body to draw the attention of the government concerned to the considerations mentioned in the previous paragraph and to invite it to re-examine the national legislation and practice in the light of these considerations.