Interim Report - Report No 355, November 2009

Case No 2646 (Brazil) - Complaint date: 09-MAY-08 - Closed

Allegations: The complainant organization alleges the dismissal of trade union officials and members for having participated in a strike, as well as other anti-union acts in the transport sector

1. 301. The complaint is contained in a communication of the National Federation of Metro System Transport Enterprise Workers (FENAMETRO) dated 9 May 2008.
2. 302. The Government sent its observations in a communication dated 26 September 2008.
3. 303. 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. The complainant’s allegations

1. 304. In its communication of 9 May 2008 the complainant organization states that Compañia do Metropolitano de São Paulo is a public enterprise which forms an integral part of the administrative structure of the Government of the State of São Paulo. The complainant organization alleges that, as the sole holder of its capital stock, the enterprise has unduly interfered in the free organization and trade union activities of the metro workers by carrying out dismissals in reprisal for strike action. Moreover, the complainant organization alleges that the Government of the State of São Paulo publicly admitted that it intended to recruit workers on a permanent basis with the sole and deliberate aim of replacing any workers participating in strike action carried out by the Union of São Paulo Metro System Transport Enterprise Workers (Sindicato dos Trabalhadores em Empresas de Transporte Metroviários de São Paulo) in order to undermine such action. According to the complainant organization, the situation is all the more serious given that the federal bodies of the Federative Republic of Brazil, in particular the Ministry of Labour and Employment, the Labour Public Prosecutor’s Office and the labour courts, which are responsible for supervising compliance with labour legislation and the prevention of such practices throughout the country, have failed to effectively combat and suppress the clearly discriminatory practices of the Government of the State of São Paulo and the Compañia do Metropolitano de São Paulo enterprise, to the detriment of the free organization and trade union activities of São Paulo metro workers.
2. 305. The complainant organization states that on 23 April 2007 the São Paulo metro workers launched a work stoppage in protest at the possibility of the executive branch vetoing “Amendment No. 3”, a draft bill under which federal inspectors would no longer have the authority to declare the existence of an employment relationship where an inspected enterprise is clearly found to be evading labour legislation. The complainant organization alleges that immediately following the work stoppage, on 24 April 2007, Compañia do Metropolitano de São Paulo dismissed five officials of the Union of São Paulo Metro System Transport Enterprise Workers (Paulo Roberto Pasín, Pedro Augustinelli Filho, Ronaldo de Oliveira Campos, Alex Fernándes Alcazar and Ciro Moraes), claiming that the trade union officials had sabotaged the operation of trains in the enterprise, as well as disconnecting the electricity in the vicinity of S?c metro station. The complainant organization states that it is clear from the above information that the trade union officials were dismissed as a result of the work stoppage and that the enterprise then proceeded to carry out the dismissals without taking the appropriate measures in regard to the accusations levelled at the workers. This demonstrates that the trade union officials were dismissed because of their participation in trade union activities. According to the complainant organization, the dismissals are all the more discriminatory in the light of the fact that the enterprise dismissed the workers without having conducted an investigation into the acts of vandalism of which the workers and trade union officials were accused.
3. 306. The complainant organization adds that, on 1, 2 and 3 August 2007, the São Paulo metro system workers held a work stoppage in protest at the policy of Compañia do Metropolitano de São Paulo concerning employee profit sharing. At the time the workers were demanding payment of a fixed amount, to be divided equally among the employees, as had been the practice in the enterprise for over ten years. According to the complainant organization, the enterprise submitted a proposal to alter this practice by establishing a system whereby employees would receive an amount in proportion to their wages. Once the work stoppage was over, in a clear act of reprisal, the Government of the State of São Paulo ordered Compañia do Metropolitano de São Paulo to dismiss 61 workers who had taken part in the stoppage.
4. 307. The complainant organization alleges that the group of workers dismissed includes an official of FENAMETRO, six officials of the Union of São Paulo Metro System Transport Enterprise Workers and another three candidates for office in the latter organization, which was scheduled to hold elections between 10 and 14 September 2007. The complainant organization states that the Governor of the State of São Paulo himself not only publicly admitted the repressive and intimidatory nature of the dismissals, but also described the actions of the Union of São Paulo Metro System Transport Enterprise Workers as political and opportunistic. More specifically, he stated in the media that the dismissal of 61 employees of Compañia do Metropolitano de São Paulo was intended as a response from the Government and the metro itself to the working population of São Paulo and that the measures were aimed at preventing any future work stoppages either by the metro workers or by any other category of public servant or employee of the Government of the State of São Paulo.
5. 308. The complainant organization considers that although the competent judicial authority ruled that the work stoppage was abusive, this alone does not justify the dismissal of trade union officials and workers for having participated in it. The only effect of that legal decision should be for the workers to resume their normal duties; to do otherwise would be to authorize government intimidation and reprisals, in violation of Convention No. 98.
6. 309. FENAMETRO adds that in addition to the abovementioned violations of the principles of freedom of association, the Government of the State of São Paulo and Compañia do Metropolitano de São Paulo publicly announced that they planned to hire 100 workers on a permanent basis, with the sole aim of replacing any metro workers participating in future work stoppages. According to the Secretary for Metropolitan Transport of the Government of the State of São Paulo, 60 of the 100 workers to be hired on a permanent basis will be supervisors, making it extremely difficult for them to join a union because they will be in positions of authority. The recruitment of these replacement workers on a permanent basis was announced on the Universo OnLine news portal, as well as in the O Estado de São Paulo newspaper. According to the complainant organization, the aim of Compañia do Metropolitano de São Paulo is to have sufficient replacement workers to keep all of its train services running, thus rendering any strikes held by the workers ineffective. According to FENAMETRO, if the plan to hire replacement workers on a permanent basis goes ahead, it will undermine any trade union action undertaken by the workers of the São Paulo metro system in order to organize independently, and more specifically, to achieve a balance of power between workers and employers in determining working conditions. It is precisely for this reason that Brazilian legislation governing strike action only authorizes the hiring of replacement workers in exceptional cases, for the duration of the strike and not, as the Government of the State of São Paulo intends, on a permanent basis.
7. 310. FENAMETRO adds that in mid-1997 the Government of the State of Rio de Janeiro granted the Opportrans SA enterprise permission to operate metro lines and stations in the city of Rio de Janeiro. That enterprise began operations one year later, on 5 April 1998. Since then the Union of Metro System Transport Enterprise Workers of Rio de Janeiro (SIMERJ), an affiliate of FENAMETRO, has filed complaints with the competent authorities concerning various problems related to the precarious working and safety conditions experienced by the workers. Owing to the fact that the enterprise has failed to resolve the issues raised by SIMERJ, dialogue between the trade union and the enterprise has become difficult over the last few years.
8. 311. Relations between SIMERJ and the enterprise reached an all-time low on the eve of a collective bargaining process scheduled for April 2007, when the enterprise dismissed two SIMERJ trade union officials, Joaz Paim Barbosa and Joao Fernándes Correa, in order to prevent them from participating in the negotiations concerning the agreement. The complainant organization adds that the enterprise also refused to recognize the members of the ordinary executive committee as trade union officials, and argued that under an earlier agreement the number of trade union officials was limited to seven.
9. 312. The complainant organization adds that at the time of their dismissals, the trade union officials in the Opportrans SA enterprise were officers, as well as candidates to serve on the bargaining committee, the members of which were to be elected during the general assembly of 27 April 2007, that was to represent SIMERJ at the abovementioned meetings. The complainant organization considers that the trade union officials were dismissed in order to undermine and intimidate the SIMERJ delegation that planned to participate in the upcoming collective bargaining process. The Organization points out that in the wake of the election of trade union officials Barbosa and Correa, the management of Opportrans SA refused to initiate the bargaining process while the officials in question remained members of the SIMERJ delegation. The complainant organization stresses that the Government, as the body responsible for ensuring compliance with labour legislation, must take steps to ensure that the dismissed trade union officials are reinstated.
10. 313. The complainant organization states that in the sphere of the public administration, the competent bodies (the Ministry of Transport, the Ministry of Labour and Employment, the regional labour offices and the Secretariat of Transport of the State of Rio de Janeiro) have failed to inspect the enterprise and prohibit it from engaging in discriminatory practices. Regarding legislation, Brazilian law does not expressly recognize the concept of anti-union acts, and there is no protective mechanism in place to prevent discrimination against workers on account of their membership of a trade union. The legal protection conferred on the officials of bodies representing workers has proved to be insufficient to ensure freedom of association. The relevant legislation (article 8, paragraph VIII, of the Federal Constitution and sections 543(3) and 522 of the Consolidated Labour Laws) is currently interpreted by the courts in such a way as to limit job security to a specific number of trade union officials (20 members maximum), regardless of the size and structure of the trade union organization.
11. 314. In the case of SIMERJ, this restrictive interpretation prevents the trade union organization from extending the right to job security to members of the financial board and shop stewards of SIMERJ who carry out their duties on the shop floor and are thus subject to interference and pressure on the part of the employer. Deprived of job security, the members of the financial board and shop stewards of SIMERJ are defenceless in the face of the discriminatory practices of the management of Opportrans SA. Consequently, their trade union activities are undermined, which in itself reflects an imbalance which constitutes a blatant violation of the principle of freedom of association. According to FENAMETRO, the Federative Republic of Brazil has clearly failed to implement measures to combat anti-union practices in the Rio de Janeiro metro system. The complainant organization states that it has presented this complaint so that the Government of Brazil will be made to take concrete steps to prohibit anti-union practices by the Government of the State of São Paulo, the Compañia do Metropolitano de São Paulo enterprise and the Opportrans SA enterprise.

B. The Government’s reply

1. 315. In its communication dated 26 September 2008, the Government states that, together with the Ministry of Labour and Employment, it is committed to prohibiting anti-union practices and to finding a legal solution to unjustified dismissals that occur in the labour market, as reflected in the allegations in this case. One example of the action already taken is the submission to the National Congress of a proposal for ratification of Convention No. 158. That Convention had previously been approved by the Congress of Brazil in September 1992, but was subsequently denounced and has not been in force since December 1996 as a result of a direct application for unconstitutionality lodged by the National Confederation of Industry (CNI). At the time it was argued that it would be extremely difficult to apply the Convention in the absence of any regulation of article 7, paragraph I, of the Federal Constitution, which provides for the protection of workers against arbitrary dismissal or dismissal without just cause. As a result of Constitutional Amendment No. 45, the trade unions requested that the ratification of the Convention be examined. This request was met by the Government in 2007 and the matter was referred for discussion by the Tripartite Committee on International Relations (CTRI), a tripartite advisory body of the Ministry of Labour and Employment.
2. 316. In a meeting held on 24 October 2007, the CTRI issued an opinion on the matter and, against opposition from employers, decided to recommend to the Minister of State for Labour and Employment, in accordance with the provisions of its internal regulations, that Convention No. 158 be sent to the National Congress for consideration. The Government points out that the decision to send the Convention to the National Congress for consideration is supported by the most representative trade union confederations and by the National Association of Labour Magistrates, which groups together labour judges from all over the country.
3. 317. The Government considers that ratification of the abovementioned Convention will make it possible to address one of the most important problems affecting Brazil’s labour market today: high employee turnover, which is used as a means of reducing wage costs and labour’s share in national income. This Convention is currently being examined by the Foreign Relations Committee of the Chamber of Deputies, and the Government is doing everything possible to ensure its approval by Congress and ratification of this important instrument to combat unjustified dismissals such as those which occurred in this case in the State of São Paulo. The Government points out that the initiative concerning ratification of Convention No. 158 is part of a set of government measures aimed at democratizing labour relations so that the national legal system will include more comprehensive regulation of anti-union practices, which is currently lacking.
4. 318. With regard to the allegations of anti-union acts in the city of Rio de Janeiro, the Government finds it unacceptable that trade union officials, in the exercise of the office entrusted to them by their co-workers, should have suffered such a gross violation of their rights, which are guaranteed by the Constitution of Brazil itself. In accordance with the provisions of Convention No. 98, the Constitution guarantees job security for all trade union officials and their substitutes who are elected by workers (article 8, paragraph VIII). The greatest difficulty faced by the Government in taking more decisive measures, such as reinstating workers in the enterprise, lies in the fact that, although freedom of association is guaranteed under the Constitution, and although the law provides protection from certain violations (as is the case of the Strike Act), there is no definition of anti-union conduct in the national legal system. This prevents the social partners and even the Ministry of Labour and Employment from taking effective preventive and repressive measures against conduct such as that which occurred in the city of Rio de Janeiro, referred to in the complaint.
5. 319. The Government points out that, in order to resolve this issue, together with workers and employers within the National Labour Forum (FNT), it has prepared a proposal for trade union reform which includes a definition of anti-union acts and penalties which may be imposed on offenders by the Ministry of Labour and Employment. The draft Bill on trade union relations (No. 369/05), currently in the final stages before the National Congress, contains a list of situations which constitute anti-union conduct. Any act intended to prevent or obstruct trade union activity by employers or workers shall be deemed to be an anti-union act and the offender may be liable to penalties. Under this proposal, the following shall 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 of workers in the workplace; granting less favourable financial treatment in a discriminatory manner on the grounds of trade union membership or activity; inciting workers to request their exclusion from proceedings initiated by a trade union organization in defence of their individual rights; forcing a worker to return to work, obstruct or hinder the exercise of the right to strike; hiring workers outside the purview of the law with the aim of replacing workers on strike; and violating the duty of good faith in collective bargaining. Under the provisions of the draft Bill, the perpetrators of anti-union acts may also be workers. The Government emphasizes that any sound proposal to resolve this issue must reflect the provisions of Conventions Nos 98 and 135, which have been ratified by Brazil. The proposal must also establish effective mechanisms for the imposition of penalties on offenders, which is meeting with considerable resistance from Brazil’s employers. The Government indicates that the proposal put forward by the FNT fills the legislative gap by defining the anti-union acts which may be committed by workers and employers, while at the same time imposing penalties which ensure the effectiveness of the legislation. The Government explains that it was not possible to reach 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. The employers’ opposition to stipulating the amount of the fines has effectively contributed to delaying the passage of the draft Bill in the National Congress, but has in no way diminished the Government’s expectation that the draft will be approved as soon as possible. It is a battle of wills, which is typical in a democratic society, in which the different interests of society have to be taken into account.
6. 320. Lastly, the Government denies that it fails to react to situations such as those described in this case. The Regional Labour and Employment Authority (formerly the Regional Labour Office) played an appropriate and important role in handling the case referred to in the City of Rio de Janeiro. The Labour Inspectorate recently recruited over 200 new officials, which demonstrate that the prevention of anti-union practices such as those alleged in this case is a constant concern. The Government is committed to taking measures on several fronts: on the one hand through amendments to legislation in order to put in place an appropriate national legal framework and, on the other, through labour inspection, which is first and foremost in the workers’ own interest.

C. The Committee’s conclusions

1. 321. The Committee observes that in the present case the complainant organization alleges that the Compañia do Metropolitano de São Paulo enterprise dismissed five trade union officials (referred to by name in the allegations) belonging to the Union of São Paulo Metro System Transport Enterprise Workers on 24 April 2007 and 61 workers (including a FENAMETRO official and six officials of the abovementioned trade union) in August 2007 for having participated in work stoppages and that the enterprise announced the recruitment of 100 workers to replace any workers participating in future strikes; furthermore, the complainant organization alleges that the Opportrans SA enterprise, which operates the metro lines and stations in the City of Rio de Janeiro, dismissed two officials (referred to by name) of the Union of Metro System Transport Enterprise Workers of Rio de Janeiro (SIMERJ) on the eve of a collective bargaining process scheduled for April 2007, with the aim of undermining and intimidating the SIMERJ delegation that was to participate in the upcoming collective bargaining process, and that the enterprise refuses to recognize the members of the executive committee as trade union officials.
2. 322. The Committee notes that the Government reiterates its previous replies in Cases Nos 2635 and 2636, recently examined by the Committee [see 353rd Report, paras 435–468], to the effect that: (1) it is committed to finding a legal solution to the unjustified dismissals that occur in the labour market, as reflected in the allegations in this case. An example of this commitment is the submission to the National Congress of a proposal for ratification of Convention No. 158; (2) the initiative concerning ratification of that Convention is part of a set of measures aimed at democratizing labour relations so that the laws of Brazil will include more comprehensive regulation of anti-union practices, which is currently lacking in the legislation; (3) 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; (4) in order to resolve this 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; (5) 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.); (6) 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; (7) 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 (8) 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.
3. 323. In these circumstances, noting that the Government acknowledges the allegations and considers the events occurring in Rio de Janeiro to be a gross violation of the trade union rights guaranteed by the Constitution, describes the dismissals carried out in São Paulo as unjustified and adds that the absence of a complete definition of anti-union acts prevents the social partners and even the Ministry of Labour and Employment from taking effective preventive and repressive measures, the Committee requests the Government to take without delay all measures within its power to ensure as a matter of priority the reinstatement without loss of wages of the trade union officials and workers dismissed at the abovementioned company in the transportation sector of São Paulo enterprise for having participated in the work stoppages of 23 April and 1, 2 and 3 August 2007, as well as the reinstatement of those trade union officials dismissed from the abovementioned company in the transportation sector in Rio de Janiero on the eve of a collective bargaining process in April 2007; if the competent authorities determine that reinstatement of the trade union officials is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination. The Committee requests the Government to keep it informed of any developments in this respect.
4. 324. Furthermore, the Committee requests the Government to take all necessary measures to carry out an investigation into the allegations regarding: (1) the recruitment of workers in the abovementioned company in the transportation sector in São Paulo to replace any workers participating in future strikes; and (2) the refusal by the abovementioned company in the transportation sector in Rio de Janeiro to recognize the members of the executive committee of SIMERJ as trade union officials, and to keep it informed in this respect.
5. 325. Lastly, while welcoming the steps taken to adopt a draft Bill for trade union reform that includes a more complete definition of anti-union acts and provides for penalties for offenders which may be imposed by the Ministry of Labour and Employment, the Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case in regard to the application of Convention No. 98.

The Committee's recommendations

1. 326. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take without delay all measures within its power to ensure as a matter of priority the reinstatement without loss of wages of the trade union officials and workers dismissed from the Compañia do Metropolitano de São Paulo enterprise for having participated in the work stoppages of 23 April and 1, 2 and 3 August 2007, as well as the reinstatement of those trade union officials dismissed from the Opportrans SA enterprise on the eve of a collective bargaining process in April 2007; if the competent authorities determine that reinstatement is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination. The Committee requests the Government to keep it informed of any developments in this respect.
   • (b) The Committee requests the Government to take all necessary measures to carry out an investigation into the allegations regarding: (1) the recruitment of workers in the abovementioned company in the transportation sector in São Paulo enterprise to replace any workers participating in future strikes; and (2) the refusal by the abovementioned company in the transportation sector in Rio de Janeiro to recognize the members of the executive committee of the SIMERJ as trade union officials, and to keep it informed in this respect.
   • (c) While welcoming the steps taken to adopt a draft Bill for trade union reform that includes a definition of anti-union acts and provides for penalties for offenders which may be imposed by the Ministry of Labour and Employment, the Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case in regard to the application of Convention No. 98.