Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

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

The Committee notes the Government’s report.

The Committee recalls that in its previous observation it noted the comments from the International Confederation of Free Trade Unions (ICFTU), now the International Trade Union Confederation (ITUC), referring to the exclusion of collective bargaining in subcontracting enterprises; the imposition of court awards in collective bargaining at the request of a single party; the dismissal of trade union leaders in violation of their trade union immunity; the formulation of blacklists; the murder of leaders of rural workers’ organizations and one trade unionist in the footwear sector. In this respect, the Committee notes that the Government: (1) states that the national legislation does not prevent workers in subcontracting enterprises from forming trade unions and, once registration has been obtained from the Ministry of Labour and Employment, they can engage in collective bargaining. Numerous service enterprise trade unions exist in the country, including those which provide services by means of subcontracting; (2) states that, by virtue of Constitutional Amendment No. 45 of 2004, the agreement of both parties is required for resorting to “dissidio coletivo” (judicial arbitration); and (3) refers to the legislative provisions which afford protection to unionized workers. The Committee observes that the Government has not supplied any information on the alleged acts of violence, and it recalls that freedom of association may only be exercised in a situation where fundamental human rights are fully respected and guaranteed, in particular those relating to human life and safety. The Committee requests the Government to launch investigations in this respect, with a view to clarifying the facts and imposing penalties on the perpetrators.

Article 4 of the Convention. Compulsory arbitration. In its previous observation, the Committee noted that under Constitutional Amendment No. 45 of 8 December 2004 (reform of the judiciary; amendment of section 114) it was established that “dissidio coletivo” may only be resorted to if both parties agree (the judiciary may not be unilaterally called on to intervene) and requested the Government to provide information on the application of this constitutional amendment in practice. The Committee notes that the Government states that under the draft trade union reform, prepared in the context of the National Labour Forum (FNT), one of the priorities for which provision is made is the encouragement of collective bargaining at all levels and in all spheres of representation, removing the dialogue between workers and employers from the scope of the State, thereby strengthening the autonomy of the parties, and maintaining the State in its role of mediator. Under the trade union reform, labour tribunals are designed to become bodies for the voluntary settlement of disputes. The Government states that, the discussions in the FNT led to the consolidation of a proposal for a constitutional amendment, which is before the National Congress, and a proposal for a preliminary draft Act on trade union relations. The Committee requests the Government to provide information in its next report on all progress made with regard to the draft trade union reform and, in particular, on any provisions adopted in relation to arbitration as a means of dispute settlement, and to supply statistical information on the number of collective disputes (dissidios coletivos) dealt with by the labour tribunals since the adoption of the Constitutional Amendment of 2004.

Right to collective bargaining in the public sector. The Committee recalls that for several years it has been referring to the need for public employees who are not engaged in the administration of the State to have the right to collective bargaining. The Committee observes that the Government has not supplied any information in this respect. The Committee therefore urges the Government to provide information in its next report on any measures adopted to ensure that public employees who are not engaged in the administration of the State have the right to collective bargaining. In particular, recalling that it noted in its previous observation that the Government had indicated the existence of constitutional limitations on the public administration’s freedom of action, making collective bargaining in the public sector difficult, and that in June 2003, in the federal public service, the Permanent National Negotiation Board (MNNP) was formed, composed of the representation of eight ministries and all the representative bodies of federal public servants, the Committee requests the Government to indicate whether any constitutional amendments have been proposed in this regard, and to provide information on the issues addressed by the MNNP.

The Committee recalls that in its previous observations it also referred to the need to repeal section 623 of the Consolidation of Labour Laws (CLT), under the terms of which the provisions of an agreement or accord in conflict with the orientations of the Government’s economic and financial policy or the existing wages policy shall be declared null and void. The Committee notes that the Government has not supplied any information in this respect, and emphasizes that, except in exceptional circumstances required by economic stabilization policies, it is the parties to the collective bargaining process who are best placed to determine wages and should be the ones to do so, and considers that the restriction contained in section 623 of the CLT affects the independence of the social partners during collective bargaining and impedes the development of voluntary collective bargaining procedures between employers or their organizations and organizations of workers for the establishment of conditions of employment. The Committee once again requests the Government to take steps to repeal the aforementioned legislative provision and to inform it in its next report of any measure adopted in this respect.

Finally, the Committee notes the comments from the ITUC, dated 28 August 2007, reiterating some of the comments previously submitted by the ICFTU concerning the application of the Convention. The ITUC also indicates that the decisions of the National Labour Forum (FNT) submitted to the National Congress were rejected and that no government initiative exists for changing trade union structures and, in addition, refers to acts of anti-union discrimination in the education sector. The Committee requests the Government to communicate its observations in this respect.

The Committee is raising a number of other points in a request addressed directly to the Government.