Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

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

Article 1 of the Convention. The Committee notes that the Government refers in its report to the provisions of the Constitution of the Republic and the Consolidation of Labour Laws, which give effect to this Article of the Convention. In this regard, the Committee notes various complaints examined by the Committee on Freedom of Association (Cases Nos 2635, 2636 and 2646) alleging acts of anti-union discrimination. The Committee observes that in the context of these cases the Government indicated that:

… although freedom of association is protected under the Constitution, the national legislation does not define anti-union acts and this prevents the Ministry of Labour and Employment from taking effective preventive and repressive measures against conduct such as that reported in this case; in order to resolve the issue the Government, together with workers and employers within the National Labour Forum (FNT), has prepared a proposal for trade union reform (369/05, currently in the final stages before the National Congress) which contains a more complete definition of anti-union acts and provides for penalties which may be imposed on offenders by the Ministry of Labour and Employment; the draft Bill on trade union relations currently before the National Congress contains a list of situations which constitute anti-union conduct (making recruitment or continued employment subject to membership, non-membership or termination of membership of a trade union organizations, dismissing or discrimination against a worker on the grounds of his or her membership or activities in a trade union organizations, participation in a strike or representation in the workplace, etc.); any sound proposal to resolve this issue must reflect the provisions of Conventions Nos 98 and 135 and establish effective mechanisms for the imposition of penalties on offenders, a point which raises differences of opinion between employers and workers as to the amount of the fines to be imposed for anti-union conduct; the proposal put forward by the FNT fills the legislative gap by defining the anti-union acts which may be committed by employers and workers, while at the same time imposing penalties which ensure the effectiveness of the legislation; and it was not possible to achieve a consensus in the FNT on the issue of penalties, in particular with regard to the amount of the fine to be imposed for anti-union conduct, but while this has delayed the passage of the draft Bill in the National Congress, it has in no way diminished the Government’s expectation that the draft will be approved as soon as possible.

In these circumstances, the Committee hopes that, in the context of the draft trade union reform to which the Government refers, remedies and sufficiently dissuasive penalties against acts of anti-union discrimination will be established explicitly with a view to ensuring that effect is given in practice to Article 1 of the Convention. The Committee requests the Government to provide information in its next report on any measure adopted in this respect.

Article 4 of the Convention. In its previous direct request, the Committee asked the Government to indicate the provision by which Decree No. 3735 of 24 January 2001 is considered to have tacitly repealed Decree No. 908 of 31 August 1993 (the latter Decree establishes restrictions on collective wage bargaining in public and mixed enterprises, making real wage increases contingent upon certain criteria, such as increased productivity, the distribution of dividends or the alignment of the overall remuneration of employees with current levels in the labour market). The Committee takes due note of the Government’s indication that, in accordance with the Act introducing the Civil Code, when a subject is regulated by a new provision, the previous provision is automatically repealed; accordingly, with the adoption of Decree No. 2735 of 2001, establishing general rules relating to State enterprises, Decree No. 908 of 1993 is considered to be repealed.

In its previous comments, the Committee also requested the Government to take steps to amend Act No. 10192 of February 2001, concerning additional measures under the Plan Real, section 13 of which provides that automatic price index-related wage increases or adjustments may not be included in agreements or dissidios colectivos, so that the parties to collective bargaining can decide freely whether they wish to agree on automatic wage adjustment, particularly in collective agreements of long duration. The Committee notes the Government’s indication that, in contrast to the comments of the Committee, the intention of this provision, in addition to avoiding the re-indexing of the economy, was to promote free bargaining between the parties, as it is for the parties to determine wage adjustments in each category. The Government adds that account also needs to be taken of the issue of inflation which, even though at a lesser level, still affects the Brazilian economy. According to the Government, the prohibition on the automatic adjustment of wages does not restrict the freedom of bargaining between the parties. In this respect, the Committee considers that the parties to collective bargaining should be able to decide freely and voluntarily whether they wish to agree on automatic wage adjustments, particularly in collective agreements of long duration. In these circumstances, the Committee requests the Government to take the necessary measures to amend the legislation as indicated above, in so far as it limits the possibilities of the parties in wage bargaining.