Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

Migration for Employment Convention (Revised), 1949 (No. 97) - Brazil (Ratification: 1965)

Article 1 of the Convention. Information on national laws and policies. The Committee notes that the National Immigration Council is the body responsible for immigration policy in Brazil, and endeavours to promote the immigration of skilled labour with a view to facilitating development, productivity and the assimilation of technology in the country. Particular attention is paid to family reunification. The Committee also notes the various resolutions adopted by the National Immigration Council setting standards with a view to simplifying procedures for the granting of both temporary and permanent work permits to migrant workers. The Committee further notes that, although the country has traditionally been a country of immigration, since 1980 there has been an increase in emigration flows, principally to the United States, Paraguay, Japan, Portugal and the United Kingdom, and that an increasing number of women are emigrating to seek employment. In view of this new trend, a working group is currently being established to reform the mandate of the National Immigration Council so that it can also address emigration policy formulation. The Committee requests the Government to provide information on any progress achieved in relation to the reform of the mandate of the National Immigration Council and to indicate the manner in which the organizations of employers and workers have been consulted on this matter. Please also provide information on the specific measures adopted or envisaged in relation to the implementation of the relevant legislation and of the resolutions adopted by the National Immigration Council.

Article 1(c). Information concerning general agreements and special arrangements. The Committee notes the Agreement on the Reciprocal Recruitment of Nationals concluded with Portugal in 2003. The Committee also notes the Agreement on the free movement of persons concluded in the context of MERCOSUR between Brazil, Argentina, Uruguay, Paraguay, Bolivia and Chile, which has not yet entered into force, although it is being applied at the bilateral level between Brazil and Uruguay and between Brazil and Argentina. The Committee further notes that, according to the Government’s report, specific agreements on migration have been concluded with Bolivia and Suriname. The Committee would be grateful if the Government would provide information on the effect given in practice to the above agreements and also requests it to continue providing information on any general agreements and special arrangements concluded in future. Please also provide copies of the above agreements.

Articles 2, 4 and 7. Assistance services to migrant workers. The Committee notes from the Government’s report that the immigration control units of the federal police (DELEMIG) are in possession of information for migrant workers covering, in particular, the extension of residence permits and the granting of permanent residence permits. The Regional Labour Delegations and the General Coordination of Immigration of the Ministry of Labour also provide general information free of charge on work by foreign nationals in the country. The Committee further notes that in January 2008 the Ministry of Labour and Employment, with ILO support, disseminated a guide on male and female Brazilian nationals abroad with a view to providing useful information to migrant workers on their rights and duties. With reference to the increasing feminization of migration and the particularly vulnerable position in which many female migrants can find themselves, the Committee recalls that information campaigns specifically directed towards women may be appropriate (General Survey on migrant workers, 1999, paragraph 198). The Committee requests the Government to provide more detailed information on the initiatives carried out by the above bodies in accordance with Articles 2, 4 and 7 of the Convention, including indications of the measures specifically intended for migrant women.

Article 3. Misleading propaganda. The Committee notes that section 206 of the Penal Code establishes a sentence of imprisonment of between one and three years and a fine for anyone who recruits workers by deceitful means with a view to taking them abroad. The Committee requests the Government to provide relevant examples of the application of section 206 of the Penal Code in relation to misleading propaganda relating to both immigration and emigration.

Article 6. Equality of treatment. The Committee notes the Government’s indication that the national legislative framework ensures equal treatment to migrant workers in relation to that granted to national workers on all the matters enumerated in Article 6(1) of the Convention. In particular, the Committee notes that under the terms of resolution No. 79 of 9 February 2007 of the National Immigration Council, the granting of authorization to work is subject to the condition that the remuneration received by the migrant worker is not lower than that paid to nationals performing the same work. Furthermore, the Committee notes the reform process, which is still under way, of the Conditions of employment of foreign nationals (Act No. 6815/80), which is intended to clarify the rights of migrants and eliminate current restrictions on holding office in trade unions which, according to the Government’s report, are no longer applied in practice. Nevertheless, the Committee recalls that legislative provisions alone are not sufficient to ensure that migrant workers enjoy equality of treatment with nationals and that it is therefore essential that States ensure that the legislation is applied in practice, particularly by means of labour inspection services or other supervisory authorities (General Survey, op. cit., paragraph 371). The Committee therefore requests the Government to provide information on the application in practice of the principle of equality of treatment between migrant workers and nationals in relation to the matters enumerated in clauses (a), (b), (c) and (d) of Article 6(1) of the Convention and it once again asks it to indicate the extent to which the matters dealt with by the provisions of Article 6(1) of the Convention may be subject to the control of the federal administrative authorities. The Committee also requests the Government to provide information on any complaints submitted to the judicial or administrative authorities concerning the principle of equality of treatment, and their outcome. Please keep the Committee informed of the reform process that is still under way concerning the Conditions of employment of foreign nationals (Act No. 6815/80).

Non-discrimination on grounds of sex and race. The Committee notes with interest the programme “Brazil, Gender and Race” which seeks to combat discrimination against women and blacks in access to employment. The Committee also notes with interest that a specific programme is being carried out in collaboration with the ILO on domestic workers which also covers migrant women, and that a national policy has been formulated to combat the trafficking of humans, with both initiatives targeting women in particular. The Committee requests the Government to provide information on any measure adopted or envisaged focusing on migrant workers within the context of the Programme “Brazil, Gender and Race”. The Committee would also be grateful if the Government would indicate the specific activities carried out in the context of the initiatives on migrant women workers and the trafficking of humans.

MERCOSUR. With reference to its previous direct request on the development of instruments relating to migrant workers in the framework of MERCOSUR, the Committee notes that the 1998 “MERCOSUR Social and Labour Declaration”, which envisages the principle of equality of treatment between migrant workers, is being revised and that, in this context, a comparative study is being undertaken of national labour legislation in the countries concerned with a view to their future harmonization. The Committee also notes that the formulation of an Action Plan for Migrants is being examined and that a Regional Plan on Labour Inspection was adopted. The Committee further notes the formulation of a Declaration on the Rights of Workers in the MERCOSUR area respecting social security, as well as the entry into force in 2005 of the “MERCOSUR Multilateral Agreement on Social Security”. Finally, the Committee notes that, under the terms of section 8 of the Agreement on the Residence of Nationals of the States Parties to MERCOSUR, Bolivia and Chile of 2002, persons who have obtained the right of residence in one of these countries in accordance with sections 4 and 5 of the Agreement are entitled, among other rights, to have access to any activity under the same conditions as the nationals of the receiving country. The Committee asks the Government to provide information on the activities carried out in the context of the Regional Plan on Labour Inspection and their results. The Committee also requests the Government to provide information on the effect given in practice to the MERCOSUR Multilateral Agreement on Social Security and section 8 of the Agreement on the Residence of Nationals of the States Parties to MERCOSUR, Bolivia and Chile, and invites it to continue providing information on the progress achieved in relation to the formulation of the Plan of Action for Migrants and the revision of the MERCOSUR Social and Labour Declaration. Please also provide a copy of these instruments when they are adopted.

Article 8. Maintenance of the right of residence in the event of incapacity for work. The Committee notes that, according to the Government’s report, migrant workers with permanent residence permits in the country do not lose their right to residence in the event of incapacity for work caused by an accident or illness, and that they also receive benefits from the National Social Security Institute. The Committee requests the Government to indicate the relevant legislative provisions and also to indicate whether cases have occurred of expulsion on grounds of incapacity for work, whether there have been appeals to the judicial authorities and their outcome.

Annex I. Private employment agencies. The Committee notes that since the denunciation of Convention No. 96 all supervision of private employment agencies has been removed. The Committee recalls that, given the wide scope for abuse by intermediaries of prospective migrants during the recruitment procedure, it has recommended that such operations should be subject to the approval and supervision of the competent authority (General Survey, op. cit., paragraph 172). The Committee further recalls that in March 2006 the ILO published a Multilateral Framework on Labour Migration, which includes non-binding principles and guidelines for a rights-based approach to labour migration. It provides in particular for the granting of permits and the supervision of agencies for the employment of migrant workers, in accordance with the Private Employment Agencies Convention, 1997 (No. 181), and Recommendation No. 188. The Committee therefore requests the Government to consider the regulation of the operations of hiring, bringing into the country and placing migrant workers with a view to protecting them against any abuse and asks it to provide information in this respect.

Practical information. The Committee once again requests the Government to provide information on any court rulings involving questions of principle relating to the application of the Convention. The Committee also requests the Government to provide statistical data disaggregated by sex, country of origin and sector of activity for migrant workers present in Brazil, as well as for Brazilian workers abroad. Finally, the Committee would be grateful if the Government would provide information on the activities of the labour inspection services in this field, including reports and the results achieved.