Report in which the committee requests to be kept informed of development - Report No 353, March 2009

Case No 2470 (Brazil) - Complaint date: 01-DEC-05 - Closed

Allegations: Anti-union practices; establishment of a parallel workers’ representative body at the instigation of the company; non-recognition of the National Trade Union Committee; pressure on workers to resign from the Union

1. 423. The Committee last examined this case at its March 2007 meeting [see 344th Report, paras 353 to 386, approved by the Governing Body at its 298th Session].
2. 424. The Government sent its observations in communications dated 23 May and 24 August 2007, 12 March and 1 July 2008, and 9 February 2009.
3. 425. Brazil has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135), but has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. Previous examination of the case

1. 426. At its March 2007 meeting, the Committee made the following recommendations [see 344th Report, para. 386]:
   • (a) The Committee notes with concern that, by and large, the Government confined itself to transmitting the information obtained from both partners without expressing any judgement.
   • (b) The Committee requests the Government to carry out an investigation into the allegations of various anti-union practices carried out by the company (telephone threats to workers, filming of demonstrations in order to put pressure on the employees, infiltration of workers’ meetings by managers, cutting of barbed-wire fences to avoid the picket line and intimidation of workers to return to work during a work stoppage) and to send it detailed information in that regard.
   • (c) Observing that accompaniment by security guards could be considered in certain circumstances as a necessary measure, but that such a procedure should not result in any interference in internal trade union affairs or in the capacity of trade union representatives to communicate freely with workers in order to apprise them of the potential advantages of unionization, the Committee requests the Government to take steps to ensure that union officials have the necessary space to communicate freely with workers without interference from the employer and without the presence of the employer or the security guards. It requests the Government to kept in informed in this regard.
   • (d) With regard to the establishment of a workers’ representation body parallel to the Union, and considering that the discussion forums or communication programmes promoted by the company do not in themselves constitute a violation of freedom of association, the Committee requests the Government to adopt measures to ensure, in light of the findings of the investigation into the alleged anti-union practices, that these are not used to the detriment of the Union, which is the only body that can guarantee independence both in its establishment and its operation.
   • (e) Observing with regret that the Government has not sent its observations on Unilever’s non-recognition of the National Trade Union Committee, the Committee requests the Government to carry out an investigation promptly into this allegation and to inform it accordingly.
   • (f) With regard to the distribution of resignation forms and the setting up of a toll-free telephone line providing information on how to resign from the Union, the Committee requests the Government to put into place a mechanism that would enable it to rapidly redress any effects of this type of interference, including through the imposition of sufficiently dissuasive sanctions on the employer where appropriate, and to avoid such incidents in the future.

B. The Government’s replies

1. 427. In its communications of 23 May and 24 August 2007, the Government stated that the Ministry of Labour was carrying out investigations into the allegations made in the present case. In its communication of 12 March 2008, the Government stated that it was awaiting the conclusion of the investigations and the report on the measures adopted by the Ministry in connection with its investigation at the Unilever company into allegedly anti-union practices.
2. 428. In its communication of 1 July 2008, the Government states that Unilever was ordered to respect the rights of the union movement. The Government states that the Labour Judge of the Third Labour Court of Jundiaí approved in its entirety the public civil judgement which had been examined by the Ministry of Labour, and ordered that Unilever immediately desist from practices aimed at influencing workers in their decisions to join or leave a union, or to persuade them not to carry out union activities. The complaint was lodged by the Unified Trade Union of Chemical Industry Workers (Vinhedo Region), and during the ensuing hearings, the Regional Public Prosecutor for Labour, having heard the statements of company and union representatives, confirmed that there had been irregularities. Failure to comply with the decision will result in the imposition by the court of a 100,000 real fine for any instance of non-compliance with any of the specific obligations to refrain from anti-union action. Specifically, this means desisting immediately from any of the following acts: (1) putting pressure on workers to join or leave a union, or to cease union activities; (2) requiring employees to use any telephone service, particularly if it involves the company, to register union membership, or requiring employees to seek company authorization to join the union or have union membership dues deducted at source from wages; (3) dismissals without prior judicial inquiry, or applying any other sanction such as discounting days on which union officials had not worked in order to attend to union business, up to the limit provided for in the collective agreement, or any transfer of a union official to another establishment without his or her agreement, within the statutory period; it will also not be permitted to treat union officials in a discriminatory manner for the mere reason of holding union office, or to initiate any proceedings against workers who associate with union officials or show sympathy for union activities; (4) carrying out any form of reprisal or discriminatory act against employees or against unions on grounds of union membership or activity; (5) refusing to employ a worker because of his or her union membership or intention to join a union; (6) preventing or obstructing union officials from entering company premises in order to disseminate information on matters of interest to the workers, or preventing the use of notices, meetings, or other means of informing workers on union issues of interest to them, the aim being to ensure the freedom to organize union events within and outside company premises; (7) obstructing the freedom to conduct peaceful picketing without interference by the company, the aim being to ensure that workers enjoy the rights provided for in the law on strikes and in the national Constitution; (8) recording on video or any other photographic recording medium workers’ demonstrations or meetings without the prior consent of the workers concerned or of their union; (9) obstructing the participation by the authorized union representative in the work of the commission that may be set up to discuss profit sharing under the terms of section 2 of Act No. 10.101/2000; and (10) failing to invite workers in writing in due time, in accordance with the deadlines and terms set out in the collective agreement, where one exists, for the purpose of elections to the internal accident prevention committee.
3. 429. In its communication of 9 February 2009, the Government indicates that the Ministry of Labour and the Unilever group had reached an agreement, approved by the courts, whose terms reaffirmed the principles set out in the ILO Declaration on Fundamental Principles and Rights at Work, particularly those concerning respect for freedom of association and the right to collective bargaining. The agreement provides for a fine, to be determined by the court, in case of anti-union acts committed by the Unilever group.

C. The Committee’s conclusions

1. 430. The Committee recalls that the allegations that had remained pending in this case referred mainly to acts of anti-union discrimination which, according to the complainant organizations, had been committed by the Unilever company (telephone threats against workers, filming of demonstrations in order to put pressure on workers, infiltration of workers’ meetings by managers, cutting wire fences to avoid picket lines and intimidation of workers to make them return to work during a work stoppage, having union officials accompanied by security guards, distribution of forms for leaving the union, and setting up a toll-free telephone line allowing workers to resign from the union; and its refusal to recognize the National Trade Union Committee) [see 344th Report, paras 353–386].
2. 431. The Committee notes the Government’s statements to the effect that: (1) investigations were carried out by the Ministry of Labour into the allegations, and the labour judge of the Third Labour Court of Jundiaí ordered the company to desist immediately from practices aimed at influencing workers in their decision to join or resign from a union or persuading them to cease their union activities; (2) the complaint was lodged by the Unified Trade Union of Chemical Industry Workers (Vinhedo Region) and, during the ensuing hearings, the Regional Public Prosecutor for Labour, having heard statements by company and union representatives, confirmed that there had been irregularities; and (3) failure to abide by the court ruling will result in a 100,000 real fine for every instance of non-compliance with the obligations to desist from the anti-union acts specified in the ruling; and (4) the Ministry of Labour and the Unilever group had reached an agreement, approved by the courts, whose terms reaffirmed the principles concerning freedom of association and the right to bargain collectively and which provides for a fine to be determined by the court in case of anti-union acts.
3. 432. The Committee, while regretting the anti-union actions which were found by the court to have taken place, notes with interest the remedial measures ordered by the court, in particular the injunction issued by the court to prevent any recurrence or the carrying out of similar actions and the agreement reached in this regard. Under these circumstances, the Committee requests the Government to ensure that the principles of freedom of association are respected within the Unilever company.
4. 433. The Committee notes with interest the agreement concluded between the Ministry of Labour and the Unilever group. The Committee requests the Government to provide relevant information on the consideration given to the refusal to recognize the National Trade Union Committee and the alleged establishment of a parallel workers’ representative body within the framework of the investigations, the judicial ruling and the agreement concluded.

The Committee's recommendations

1. 434. In the light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee notes with interest the remedial measures ordered by the court against acts of anti-union discrimination and requests the Government to ensure that the principles of freedom of association are respected within the Unilever company.
   • (b) The Committee notes with interest the agreement concluded between the Ministry of Labour and the Unilever group. It requests the Government to provide relevant information on the consideration given to the refusal to recognize the National Trade Union Committee and the alleged establishment of a parallel workers’ representative body within the framework of the investigations, the judicial ruling and the agreement concluded.