Direct Request (CEACR) - adopted 1994, published 81st ILC session (1994)

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

Articles 4 and 6 of the Convention. Further to its previous comments, the Committee notes with regret the Government's reply in its report to the effect that public employees who are not engaged in the administration of the State may not negotiate their conditions of employment collectively. The Government states in this connection that the Supreme Court has declared section 240(d) of Act No. 8112 of 1990, which granted this right to public employees, to be unconstitutional.

The Committee recalls that under Article 4 of the Convention measures appropriate to national conditions must be taken to encourage and promote the full development and utilization of machinery for voluntary negotiations with a view to the regulation of terms and conditions of employment. It also recalls that it has considered that to exclude from the scope of the Convention persons employed by the State or in the public sector but who are not engaged in the administration of the State, is contrary to the meaning of the Convention.

The Committee recalls that it could not admit the exclusion from the application of the Convention of important categories of workers employed by the State merely on the grounds that they are formally assimilated to public officials engaged in the administration of the State. If this were the case, the Convention might be deprived of much of its scope. The distinction therefore must be drawn between, on the one hand, public servants who by their functions are directly engaged in the administration of the State and, on the other hand, other persons employed by the Government, by public undertakings or by autonomous public institutions. Only public servants engaged in the administration of the State can be excluded from the scope of the Convention (see 1994 General Survey of the Committee on Freedom of Association and Collective Bargaining, paragraph 200).

The Committee asks the Government to indicate in its next report the measures that it envisages to take, in accordance with the Convention, to encourage collective bargaining for this category of workers.