Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Brazil (Ratification: 1952)

The Committee takes note of the information supplied by the Government in its report and of the discussions held at the Conference Committee in 1989. It also takes note of the comments of the United Central Workers' Organisation (CUT) of 8 July 1990.

1. Article 1 of the Convention (Situation at the Bank of Brazil). In its comments, the CUT refers to a directive issued by the President of the Bank of Brazil, to compile a register of employees likely to be dismissed as part of the staff restructuring policy. The Committee notes that the directive draws attention, in particular, to the employees who "work the least and demand the most". The Committee considers that the selection criteria established are liable to impair the employees' right to organise which is guaranteed by the Constitution and national legislation.

Accordingly, the Committee asks the Government to provide information on the manner in which the Bank of Brazil staff restructuring policy is being applied in practice, indicating in particular whether the trade union organisations are involved in its creation and implementation and whether, in practice, any measures have been taken or are contemplated to guarantee adequate protection for these employees against all acts of anti-trade union discrimination that may arise with restructuring.

2. Article 4 of the Convention. Measures to encourage and promote the full development and utilisation of machinery for voluntary negotiation of collective agreements.

(a) General regime. In its previous observation, the Committee asked the Government to inform it of measures taken in the context of its economic policy to extend the scope of collective bargaining and to associate the social partners with its wages policy. Similar requests were also expressed in the conclusions of the Conference Committee.

With regard to the legislative restrictions contained in sections 11 and 12 of Act No. 6.708 and section 623 of the Consolidation of Labour Laws (CLT), the Government indicates in its report that wage adjustment machinery has been established by Act No. 8.030 of 12 April 1990 and by Temporary Order No. 193 of 25 June 1990. According to the Government, only the minimum wage is subject to intervention it being adjusted monthly to the consumer price index. Other wages are fixed through free negotiations, this being the only way to protect purchasing power effectively, since the experience of the past 20 years has shown that the indexation of wages and state intervention in the fixation of wages have led to a substantial reduction in their value and impairment of the freedom to negotiate. The Government states that it wishes to re-establish not only the value of wages but also the spirit of free negotiation which should prevail in negotiations relating to industrial relations. The Government also gives its assurance that it will shortly make every effort to remove all obstacles to collective bargaining.

The Committee observes that although the texts in question reaffirm the constitutional principle of free collective bargaining, they restrict collective negotiations by imposing parameters which may not be exceeded, as pointed out by the CUT whose main objection to the texts is that they make recovery of the value of wages lost by inflation impossible. The Committee also notes that the Government provides no information on any measures taken or machinery used to persuade the social partners to adhere to its economic austerity policy.

The Committee is aware of the country's serious economic and financial situation. However, it reminds the Government of the need to repeal the general provisions which are contrary to Article 4 of the Convention, i.e. section 623 of the Consolidation of Labour Laws, as amended by Act No. 5.584 of 26 June 1970 and Legislative Decree No. 229 of 28 February 1967, which confers extensive powers on the authorities to cancel collective agreements or arbitration awards that are not consistent with the rules set by the Government's wage policy, and the provisions of Act No. 6.708 of 30 October 1979 which allow enterprises demonstrating their economic inability to cope with wage increases to be excluded from the scope of agreements applying to them. The Committee once again urges the Government to ensure that all measures concerning wage fixing are adopted in the context of a dialogue between the Government and the social partners, so that an agreement on wage-fixing policy may be reached between the sectors concerned.

(b) Regime governing public enterprises, mixed-economy enterprises and other entities directly or indirectly controlled by the State. The Committee refers to the Constitution and notes that section 173, subsection 1 places the above sector under the legal regime governing private enterprises. The Committee gathers that the staff of such enterprises are covered by Act No. 8.030 of 12 April 1990 and Temporary Order No. 193 of 25 June 1990.

Accordingly, the Committee refers to its comments in the preceding paragraph. Moreover, it requests the Government to indicate the measures taken or contemplated to amend section 12 of Act No. 6.708 of 30 October 1979 whereby collective agreements in this sector may only be concluded within the terms of the resolutions of the National Council on Wage Policy, contrary to the constitutional principle of free collective bargaining and to Article 4 of the Convention.

The Committee asks the Government to keep it informed of any developments in this regard.