Rapport définitif - Rapport No. 158, Novembre 1976

Cas no 800 (Brésil) - Date de la plainte: 14-JUIL.-74 - Clos

1. 95. The complaint, based on documents drawn up by the National Labour Front, dated 14 July 1974 and 5 September 1974, was submitted to the ILO by the World Confederation of Labour (WCL) on 17 September 1974.
2. 96. The complaint was duly transmitted to the Government which communicated its observations thereon on 27 January 1976.
3. 97. Brazil has not ratified the Freedom of Association and. Protection of the Right to Organise Convention, 1948 (No. 87); it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 98. The complaint concerns the situation of the workers of Portland Cement Company at Perus which is owned by a group named "Abdalla". As background information, the complainants give an account of the relations between the workers at Perus, who are the workers of the industrial, Cement, Lime and Plaster Workers' Union of Sao Paulo and the Abdalla group management and of the difficulties experienced by them in obtaining recognition of their trade, union rights. In particular, the complainants give an account of a strike in 1962 as a result of which 501 workers were dismissed. Following a long court trial, which lasted until 1969, these workers were reinstated with the right to reimbursement of all wages they had lost. According to the complainants, the total sum involved amounted, by today's standards, to some 20 million cruzeiros, but the greater part thereof was not claimed since more than 70 per cent of the workers concerned had died in the interval.
2. 99. The complainants add that, following the change of government in 1964, their union was put under control by the authorities and the chief of personnel of the Perus was appointed union administrator, a post he occupied for one year. Between 1970 and 1972, continue the complainants, the Abdalla group did everything to hinder trade unionism. Workers in Perus were transferred to another undertaking in the group, named Socal, and if they refused they were dismissed. No one working in Socal was allowed to become a union member. Complaints were made to the Minister but no action was ever taken, except that the Minister stated that workers in Socal were entitled to become members of the Perus workers' union.
3. 100. In August 1971, continue the complainants, the union brought charges against the directors of the Abdalla group undertakings, Perus and Socal, but after many months the affair was dropped by the police.
4. 101. The complainants add that between 1970 and 1973 the internal situation in the union deteriorated. The majority of the workers had no confidence in the union's president whose activities, including the suspension of an executive member of the union in September 1972, were unpopular with the members. In January 1973 the union appointed a Committee to examine its financial position and a number of irregularities were brought to light. The president was accorded a certain time in which to put matters right and refund missing sums. No report was made at that time to the Minister of Labour, but it appeared clear to the workers that the eventual intervention of the Government was made to protect the president and to favour the Abdalla group.
5. 102. The complainants add that, following further attempts to bring the Abdalla group to justice, the appropriate Ministry finally took action under the Penal Code on 13 May 1973, denouncing the directors for, inter alia, failure to allow the workers to exercise their legal rights when transferring them, and preventing them from participating in the only local trade union. The court action, state the complainants, is being heard by the Federal Court in Sao Paulo. The workers realised that the only solution to the problem of recovering the 20 million cruzeiros awarded to them by the courts in 1969 was the confiscation of the assets of the company.
6. 103. According to the complainants, at the end of June 1973, a part of the company's assets was confiscated. The quarries, however, were left in the hands of the Abdalla group. The workers demanded that Socal (Abdalla group) which controlled the quarries at Cajamar be wound up.
7. 104. The complainants added that the president of the union, wishing to please both the workers and the Abdalla group at the same time, dismissed the union's legal adviser who had served the union for 18 years. This action was denounced by the workers who demanded a general meeting. This meeting could not, however, take place because the Minister, who according to the complainants did not want to see the president lose his office, put the union under government control.
8. 105. The workers, state the complainants, continued their efforts to obtain the reasons for the arbitrary decision of the president to dismiss the union's lawyer and for the intervention of the authorities. The information obtained by the workers indicated that the president himself had requested the intervention by the authorities. The president, add the complainants, was satisfied that a general meeting had been avoided, but he has since exercised no trade union duties nor does he have any contacts with the workers.
9. 106. The complainants add that, since the president had not been dismissed, they decided to draw the attention of the Minister of Labour to the irregularities discovered after the examination of the union's accounts.
10. 107. Although deprived of their union as a result of the government intervention, the workers continued their struggle, and in April 1974 the union's lawyer was able to obtain access to the file containing the reasons for the intervention of the Government. According to the complainants, the lawyer was able to ascertain that it was the union's president himself who had requested the intervention on 13 November 1973, on the grounds that he could no longer control the union and the workers had threatened him with violence and even with death. On the following day, the Minister of Labour confirmed the intervention by virtue of article 528 and 553(2) of the Labour Code.
11. 108. According to the complainants, the labour delegate of the Ministry had accepted - without any evidence - the slanderous accusations made by the president. The president had not, however, been suspended and could have returned to office, but he had last the confidence of the workers and his return would have brought up again the question of a general meeting. For these reasons, the minister prolonged the intervention indefinitely.
12. 109. The complainants state that it was only at the beginning of July 1974 that the members of the temporarily-imposed executive Committee began to listen to the workers' claims and, at the time of lodging the complaint, the accounts were being examined by the Ministry.
13. 110. On 1 May 1974, the complainants continue, a petition was addressed to the President of the Republic concerning the activities of the Abdalla group, and the workers recalled to the Minister of Labour the events which had led to the government intervention, requesting the reopening of their headquarters once a week for the purpose of meeting to discuss their problems, even in the presence of the officials of the Government. No response has been received from the Minister.
14. 111. In a further communication from the National Labour Front, dated 5 September 1974, submitted by the World Confederation of Labour on 17 September 1974, reference is made to the numerous interventions of the Brazilian Government in the activities of trade unions, and in particular to the intervention affecting the Union of Industrial, Cement, Lime and Plaster Workers.
15. 112. In its reply dated 27 January 1976, the Government explains that for a number of years the industrial undertakings which formed part of the Abdalla group had established a system of work which was not in accordance with the labour laws, and that this had given rise on several occasions to court proceedings being taken against them at the instance of the workers.
16. 113. At the time, continues the Government, no intervention was considered necessary since questions involving labour and management are normally regulated by the labour courts which, in Brazil, are tripartite in character. Relations between labour and management, however, deteriorated and a series of strikes took place while court proceedings were going on. Two of these strikes lasted 46 and 99 days respectively. These strikes, states the Government, indicate in themselves that freedom of association is exercised. In Brazil, the right to strike is permitted under the Constitution and by Law No. 4330/64. In fact, continues the Government, the strike of 99 days was the beginning of a long legal battle against the Abdalla group which resulted in the group's being called upon to pay the sum of 18,849,881 cruzeiros to the 501 workers who had been unfairly dismissed.
17. 114. After a period of fairly reasonable relations between the workers and the employers, the Government was forced to take direct action against the group in order to protect the interests of the workers who were suffering from irregularities and even violence perpetrated by the employers. Contrary to what is stated by the complainants, the Minister of Labour himself took court action against the Abdalla group, which ended in the confiscation of all the assets of the group. The facts show, states the Government, that a hard struggle was engaged in by the authorities in order to defend the workers' interests.
18. 115. Apart from labour-management problems, continues the Government, the trade union of the workers had difficulties because of the disagreements which arose between the elected executive Committee and the lawyer for the complainant workers who was supported by certain members. These disagreements were so serious that they led to the dismissal of the lawyer. The Government adds, however, that it was in no way involved in this decision of the union. It was only when the duly elected leaders of the union recognised that they were no longer capable of managing the union, because of the atmosphere of hostility which prevailed between the various factions, that the Minister of Labour intervened.
19. 116. It is also necessary to point out, the Government adds, that when it received the initial communications from the trade union leaders concerning the disagreements between the groups of workers, it took the view that the matter lay outside its competence and that the workers themselves should resolve the problem. A communication had also been received by the Ministry from the workers pointing cut the serious disagreements and the irregularities within the union. According to the Government, this in itself shows the wisdom of the intervention of the Ministry following the request of the leaders of the union.
20. 117. The Government points out that it has always responded to claims made by the workers, while at the same time taking care not to take steps which might, directly or indirectly, adversely affect trade union activities. The Government could not remain indifferent to a union which was in a chaotic state because of internal problems. Other problems also arose between the union lawyer and the executive when the lawyer claimed as fees one half of the amount awarded by the court to the union.
21. 118. The closure of the union, claims the Government, was justified. Some groups had decided to take extreme measures, as had been stated by the union's president in a letter to the ministry in which he requested the Minister of Labour to protect the assets of the union and restore a situation of normalcy in its premises located in the undertaking. As regards the irregularities to which the complainants drew attention, the Government acted cautiously, using legal means to redress the situation. The Government points out that for a time after the confiscation of the factory at the Cajamar quarry, it remained under the control of the Abdalla group, but in the name of a trustee. The Government completed an inventory of the assets of Cajamar before any radical steps were taken. At present the Cajamar quarry was sequestrated and the workers were completely free to defend their interests. The complaint, therefore, states the Government, has become devoid of substance as a result of subsequent developments.
22. 119. The Government explains that its decision to confiscate was facilitated by the fraud which had been perpetrated by the Abdalla group against the Treasury. The activities of the group had been closely watched by the Government since 1964, and all steps were taken thereafter to confiscate and reimburse the Treasury as well as to indemnify the workers. The Government could be blamed for some delays caused by bureaucratic conflicts between various administrative departments, but the workers had not helped the situation by addressing their complaints at various times to different government services.
23. 120. As for the allegation that the company put obstacles in the way of the workers who wished to belong to a union, the Government states that this matter is being dealt with by the federal police. Moreover, the Government adds, it sent secretly more than 100 labour inspectors at the same time to investigate the Abdalla group undertakings, and their report contains information on labour conditions which justifies the action subsequently taken against the company. Action was taken through the local labour division in Sao Paulo against the group, as well as through the federal police and the department of public security.
24. 121. The Government adds that, even if the union's lawyer has ceased to work for the union, the workers' interests are properly defended and their rights respected. Strikes took place when the workers deemed this appropriate, collective agreements were signed when agreement was reached and trade union activity followed its normal course so long as it was able to maintain a properly elected executive. This executive was only set aside when it declared itself no longer capable of fulfilling its role. The Government, in the exceptional circumstances which prevailed, only intervened at the request of the properly elected executive.
25. 122. No judicial appeal, however, states the Government, has been made either by the workers or by the former union lawyer against the intervention. In fact, states the Government, the measures were taken to ensure the very survival of the union. Once the confiscation of the factory was completed, the Minister of Labour took care to appoint an executive Committee of the union consisting of members of the organisation and this Committee is now seeking to restore a normal situation with a view to holding elections.
26. 123. The Government states that the Minister acted in the only way possible in such a situation and never previously have workers and Government acted so much in common than in the matter which ended in the confiscation of the assets of the Abdalla group.

B. B. The Committee's conclusions

1. 124. On several occasions in the past the Committee has been called upon to deal with cases concerning intervention by the Government of Brazil in the internal affairs of trade unions. In, these cases the Committee has drawn the attention of the Government to the principle that workers' organisations should have the right to elect their representatives freely and to organise their administration and activities, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. The Committee has also pointed out that the placing of trade union organisations under control entails a serious danger of restricting this right.
2. 125. Moreover, the Committee has stated in a number of cases that the principles of freedom of association do not prohibit control of the internal activities of a trade union when the latter infringes the law (which should not, however, be such as to undermine the principles of freedom of association), but it has considered it to be of maximum importance that, in order to guarantee an impartial and objective procedure, the control should be exercised by the relevant judicial authority.
3. 126. Matters involving no dispute between the Government and the trade unions but solely consisting in a conflict within the trade union movement itself are the sole responsibility of the parties themselves. For this reason, the Committee is not called upon to examine questions concerning the relations within the union involved in the complaint and in particular the accusations brought by the complainants against the union's president and the dismissal of the union's legal adviser.
4. 127. As regards the intervention in the union by the authorities, however, the Committee notes that it commenced as long ago as September 1973 and that it still continues. From all the information at its disposal the Committee notes that the internal affairs of the union were in a state of disorder and workers attempted to call a general meeting. This general meeting could have resulted in a settlement of the internal problems. Because of the intervention of the authorities which was called for by the president, however, the general meeting could not be held.

The Committee's recommendations

1. 128. In all these circumstances, and with regard to the case as a whole, the Committee recommends the Governing Body:
   • (a) to draw the attention of the Government to the principles and considerations contained in paragraphs 124 to 127 above, and in particular to the principle that workers and their organisations should have the right to elect their representatives in full freedom and to organise their administration and activities, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof;
   • (b) to request the Government to take appropriate measures to bring to an end the intervention which commenced as long ago as September 1973 and to enable elections to be held for the appointment of a new executive Committee in the Union of Industrial, Cement, Lime and Plaster Workers; and
   • (c) to request the Government, in accordance with the procedure laid down in paragraph 25 of the 127th Report of the Committee, to inform the Committee prior to its session in November 1976 of the measures taken to allow elections in the above-named organisation.