Rapport définitif - Rapport No. 400, Octobre 2022

Cas no 3219 (Brésil) - Date de la plainte: 19-MAI -16 - Clos

Allegations: The complainant organizations allege that SINTHORESP has been unfairly deprived of the right to represent fast-food workers in the municipality of São Paulo and has been fined for bringing court proceedings requesting the payment of trade union contributions

1. 187. The Committee examined this case at its May–June 2018 meeting, when it presented an interim report to the Governing Body [see 386th Report, approved by the Governing Body at its 333rd Session (June 2018), paras 121–133]. 
2. 188. The complainant organizations presented additional information in communications received on 31 May and 25 September 2018.
3. 189. The Government sent observations in communications of 25 May and 23 October 2018, 30 September 2019 and 1 February 2021.
4. 190. 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), and the Collective Bargaining Convention, 1981 (No. 154).

A. Previous examination of the case

1. 191. At its June 2018 meeting, the Committee made the following interim recommendation concerning the allegations presented by the complainant organizations [see 386th Report, para. 133]:
   • Recalling that it is important for workers to be able to freely choose which organization will represent them, the Committee requests the Government to send promptly its observations on the complainant’s allegation that it was deprived of the right to represent fast-food workers in the state of São Paulo, including information on the procedures and decisions that led to such situation. The Committee also requests the complainant to provide more detailed information on the extent of its representativeness in the state of São Paulo in general and in the state’s fast-food restaurants in particular as well as updated information on the court proceeding that SINDIFAST would have initiated against SINTHORESP.

B. Additional information

1. 192. In two communications received on 31 May and 25 September 2018, SINTHORESP provides additional information on the various aspects of this case. The complainant organization first of all clarifies that: (i) the dispute between SINTHORESP and SINDIFAST over representation does not concern fast-food restaurants in the state of São Paulo, but rather those in the municipality of São Paulo, an area with a very high number of such restaurants; and (ii) the trade union contributions taken away from SINTHORESP to be paid to SINDIFAST are not, as the Government incorrectly claimed, compulsory contributions that are contrary to ILO principles and that were in fact abolished by the 2017 legislative reform, but rather contributions that have been negotiated under collective agreements and are applicable to workers who are not members of the union but who derive benefits from the collective agreement (the so-called “solidarity contributions”).
2. 193. SINTHORESP then refers to the dispute that it has before the courts with SINDIFAST and claims in this respect that: (i) the payments of union contributions by a number of fast-food restaurants in the municipality of São Paulo to SINDIFAST instead of to SINTHORESP are fraudulent and are being made without the consent of the workers concerned, which is a key dimension of freedom of association that is not being taken into account by the judicial bodies; (ii) SINTHORESP represents fast-food workers in 35 other municipalities; (iii) the establishment of SINDIFAST has given rise to external interference by enterprises, which is contrary to Convention No. 98, which has been ratified by Brazil; and (iv) the collective agreement signed by SINDIFAST has led to a deterioration of working conditions and has resulted in a 40 per cent reduction in the wages of the workers concerned, which demonstrates the non-representative character of this trade union organization.
3. 194. Lastly, the complainant organization also refers to the fact that SINDIFAST instituted a number of judicial proceedings to deprive SINTHORESP of the right to represent several fast-food restaurants, requesting that the corresponding trade union dues be returned to it and calling for SINTHORESP to be fined millions of Brazilian reais. The complainant organization states that, in this context, the labour court is ordering SINTHORESP to pay out 22 million Brazilian reais (BRL), thereby threatening the very existence of the trade union organization.

C. The Government’s reply

1. 195. By communications of 25 May and 23 October 2018, the Government provides replies to the recommendation made by the Committee during its first examination of the case and the additional information sent by SINTHORESP. The Government refers first to the allegations by the complainant organization that it was deprived of the right to represent fast-food workers in the municipality of São Paulo, including information on the procedures and decisions that led to the said exclusion. The Government states in this regard that: (i) under article 8 of the 1988 Constitution, the Ministry of Labour cannot intervene in the organization and functioning of trade unions and it is prohibited to make the establishment of trade unions subject to prior authorization; (ii) at the same time, by virtue of súmula [summary of case law] No. 677 of the Federal Supreme Court, the Ministry of Labour is responsible for registering trade union organizations and ensuring that the single trade union principle is respected; (iii) however, it is not the Ministry’s responsibility to assess the representativeness of trade unions beyond what is implicitly required by law; (iv) Brazilian legislation does not contain specific criteria for determining the representativeness of trade unions; (v) article 8(II) of the Constitution establishes however the single trade union system, under which it is prohibited to establish more than one trade union organization, at any level, to represent the same professional or economic category, in the same territorial area; (vi) within the framework of the single trade union system, article 571 of the Consolidation of Labour Laws enshrines the principle of specificity, which allows for the establishment of a new trade union organization that has a more specific scope of activity than an existing union, which can lead to a situation in which two trade unions can request the right to represent the same category of workers; and (vii) the majority of case law and legal doctrine consider that the principle of specificity should prevail over the principle of territoriality.
2. 196. After having described the general rules and criteria applicable to the determination of trade union representativeness, the Government refers to the decision of the Supreme Labour Court granting SINDIFAST the right to represent fast-food workers in the municipality of São Paulo. The Government states in this respect that the Supreme Labour Court’s decision of 3 August 2016 was based on the above-mentioned principle of specificity and that the court considered that SINDIFAST had greater legitimacy to represent this category of workers because it was devoted exclusively to fast-food restaurants.
3. 197. The Government then refers to the allegations by the complainant organizations concerning the excessive fines imposed on SINTHORESP by the courts. The Government states in this respect that: (i) the Government fully respects the independence of the judiciary; (ii) the courts fined SINTHORESP because they found that the organization had made use of the judicial system in bad faith by initiating multiple identical judicial proceedings despite knowing in advance the outcome of these proceedings; and (iii) this is notwithstanding the fact that in some of the cases brought by SINTHORESP it is the enterprise that is the subject of the proceedings that has had to bear the legal costs.

D. The Committee’s conclusions

1. 198. The Committee recalls that the present case concerns the situation of a trade union in the catering sector, SINTHORESP, which, under the legal mechanism of enquadramento sindical [trade union coverage], has lost the right to represent fast-food workers in the municipality of São Paulo in favour of SINDIFAST, a decision that is considered by the complainant organizations to be unfair on the grounds that SINDIFAST is not representative.
2. 199. The Committee takes note of the additional information provided by the complainant organizations according to which: (i) the workers concerned did not give their consent before their union dues were diverted to SINDIFAST; (ii) SINTHORESP represents fast-food workers in 35 other municipalities; (iii) the establishment of SINDIFAST has led to external interference by enterprises, which is contrary to Convention No. 98 that has been ratified by Brazil; and (iv) the collective agreement signed by SINDIFAST has led to a significant deterioration in the working conditions and pay of the workers concerned, which demonstrates the non-representative character of this trade union organization. The Committee notes that, for its part, the Government states that: (i) while it is the responsibility of the Ministry of Labour to register trade union organizations and ensure respect for the single trade union principle (under which it is prohibited to establish more than one trade union organization, at any level, to represent the same professional or economic category, in the same territorial area), it is not its responsibility to carry out an assessment of the representativeness of trade unions beyond what is implicitly required by law; (ii) Brazilian legislation does not contain specific criteria for determining the representativeness of trade unions; (iii) within the framework of the single trade union system established by the Constitution, article 571 of the Consolidation of Labour Laws enshrines the principle of specificity according to which a new trade union organization that has a more specific scope of activity than an existing union may be established; and (iv) the Supreme Labour Court relied on the above-mentioned principle of specificity and granted SINDIFAST the right to represent fast-food workers considering that this organization enjoyed greater legitimacy owing to the fact that it was devoted exclusively to this type of restaurant.
3. 200. The Committee takes note of this information. The Committee recalls that the dispute over representation between SINTHORESP and SINDIFAST has arisen in the context of the Brazilian system of collective labour relations, which is governed by the single trade union principle, according to which only one trade union organization may legitimately represent, on a territorial basis that may not be smaller than a municipality, a given category of workers. The Committee also notes that the single trade union system, which has been the subject of recommendations by the Committee in previous cases because of the restrictions it imposes on the right of workers to form and join the trade union of their choice [see, for example, 325th Report, Case No. 2099, para. 193], does not prevent disputes over representation from arising when two trade union organizations claim to be the best qualified to represent a given category of workers. The Committee also notes that this type of dispute may arise in particular when, as in the present case, a new trade union is established with a more limited scope of activity than an existing trade union.
4. 201. The Committee notes that, in the context of the dispute over representation between SINTHORESP and SINDIFAST, neither the complainant organizations nor the Government provide specific data that would make it possible to assess the representativeness of each of the two organizations and, in particular, they do not provide figures on how many members they have in the fast-food sector in the municipality of São Paulo. The Committee also notes that, in the same vein, the Supreme Labour Court decision cited by the Government granting representative status to SINDIFAST is based on the principle of specificity following the exclusive dedication of that organization to fast-food restaurants.
5. 202. The Committee recalls in this respect that workers and employers should in practice be able to freely choose which organization will represent them for purposes of collective bargaining [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1359]. The Committee also recalls that: (i) in order to encourage the harmonious development of collective bargaining and to avoid disputes, it should always be the practice to follow, where they exist, the procedures laid down for the designation of the most representative unions for collective bargaining purposes when it is not clear by which unions the workers wish to be represented. In the absence of such procedures, the authorities, where appropriate, should examine the possibility of laying down objective rules in this respect; (ii) in order to determine whether an organization has the capacity to be the sole signatory to collective agreements, two criteria should be applied: representativeness and independence; according to the Committee, the determination of which organizations meet these criteria should be carried out by a body offering every guarantee of independence and objectivity; and (iii) where, under the system in force, the most representative union enjoys preferential or exclusive bargaining rights, decisions concerning the most representative organization should be made by virtue of objective and pre-established criteria so as to avoid any opportunities for partiality or abuse [see Compilation, paras 1382, 1374 and 1369]. In the light of these criteria, the Committee expects that the disputes over representation, including the present case, will be settled by applying objective and pre-established criteria for representativeness determined by the Government in consultation with the social partners, taking due account of the wishes of the workers concerned.
6. 203. The Committee, further notes the Government’s indication that national legislation does not contain criteria for determining representativeness that would make it possible to settle the representation disputes that may arise between several trade union organizations, and observes that this absence may hinder the right of workers to be represented in collective bargaining by the trade union of their choice. As Brazil has ratified Conventions Nos 98 and 154, the Committee refers this legislative aspect to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
7. 204. 204. In relation to the Committee’s request for the complainant organizations to provide updated information on the court proceedings that SINDIFAST is said to have initiated against SINTHORESP, the Committee notes that the complainant organizations allege that; (i) in the context of the legal proceedings initiated by SINDIFAST to deprive SINTHORESP of the right to represent several other fast food restaurants, SINDIFAST requested that the corresponding trade union dues be returned to it and called for SINTHORESP to be fined millions of Brazilian reais; and (ii) in this context, the labour courts are asking SINTHORESP to pay out BRL22 million, thereby threatening the very existence of the trade union organization. The Committee notes that, for its part, the Government does not refer to the proceedings between SINDIFAST and SINTHORESP, merely recalling that the fine imposed on SINTHORESP by the courts at the time was based on that trade union organization’s use of the legal system in bad faith. While noting that it does not have the information that would enable it to comment specifically on the ongoing proceedings between the two organizations, the Committee trusts that the application of clear and pre-established criteria for representativeness, as referred to in the preceding paragraphs, will make it possible to settle the above-mentioned dispute in accordance with the principles of freedom of association.

The Committee’s recommendations

1. 205. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Taking into account that national legislation does not contain criteria for determining representativeness that would make it possible to settle the representation disputes that may arise between several trade union organizations, the Committee expects that the disputes over representation, including the present case, will be settled on the basis of objective and pre established criteria for representativeness determined by the Government in consultation with the social partners, taking due account of the wishes of the workers concerned.
   • (b) The Committee refers the legislative aspects of the case to the Committee of Experts on the Application of Conventions and Recommendations.
   • (c) The Committee considers that this case is closed and does not call for further examination.