Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Employment Promotion and Protection against Unemployment Convention, 1988 (No. 168) - Brazil (Ratification: 1993)

Recalling that the next detailed report on the Convention is due by 1 September 2012, the Committee asks the Government to include in it information on the following points:

Article 2. Coordination of policies. Please describe how coordination is insured, in law and in practice, between the system of protection against unemployment and the employment policy.

Article 8(3). Extension of promotion of employment to other categories of persons. Please describe the special employment programmes which have been established for the categories of persons mentioned in your report of 2008 under Article 8 of the Convention, furnishing information as to the aims and content of said programmes, and indicate whether any measure has been taken to extent the promotion of employment to other categories of persons, such as long-term unemployed, migrant workers lawfully resident in the country, workers affected by structural change, etc.

Article 10(1), in conjunction with Article 12. According to section 3(V) of Act No. 7.998 of 11 January 1990, regulating the programme of unemployment insurance, the right to unemployment benefit is conditioned on the person concerned “not having income of whatever nature sufficient for the maintenance of him and his family”. Please describe how this provision is applied in practice.

Article 10(1), in conjunction with Article 20(b) and (c). According to section 3 of Act No. 7.998 of 1990 and section 3 of resolution No. 64 of 28 July 1994, establishing procedures for the provision of unemployment insurance, the right to unemployment benefit is ensured only to “workers dismissed without just cause, including an indirect one”. Please explain how the “just cause, including and indirect one” is defined in the national legislation and jurisprudence.

Article 10(2). According to the information supplied by the Government, the Brazilian legislation does not recognize the contingency of full unemployment and suspension of earnings due to a temporary suspension of work where the employment relationship has not been terminated, as in these cases workers continue to receive their wages in full. The Committee asks the Government to indicate the provisions of the legislation which guarantee payment of full wages in the cases where, particularly because of economic, technological, structural or similar reasons, temporary reduction in the normal or statutory hours of work or temporary suspension of work occurs without any break in the employment relationship.

Article 11. Please supply the statistical information on the scope of the unemployment insurance scheme as required by the report form under this Article of the Convention.

Article 15(1). Please supply information, including statistics, requested in the report form under this Article of the Convention, indicating in particular whether the unemployment benefit is calculated in accordance with the method specified in paragraph (a) or (b) of this Article. Please indicate also the up-to-date amount of the national minimum wage and the amount which provides the minimum essential for basic living expenses.

Article 19(2)(a) and (3). The Committee recalls that, under these provisions of the Convention, where the duration of the benefit varies with the length of the qualifying period, the average duration of the benefit shall be at least 26 weeks. The Committee notes in this respect that, according to section 2(2) of Act No. 8.900 of 30 June 1994 and section 5 of resolution No. 64 of 1994, the maximum duration of unemployment benefit varies from three to five months depending on the length of the previous employment of the person concerned within the reference period of 36 months: it is three months for persons having between six and 11 months of previous employment, four months for those having 12 to 23 months of previous employment, and five months after at least 24 months of previous employment. As the average duration of the benefit of at least 26 weeks required by the Convention is not attained, the Committee asks the Government to bring its legislation in conformity with the Convention.

Article 19(2)(b). The Committee recalls that, in the event of unemployment continuing beyond the initial period of benefit established in paragraph 2(a) of this Article, the benefit should continue to be paid for a prescribed supplementary period, the duration of which may be limited by the national legislation. The amount of this additional benefit may be calculated in the light of the resources of the beneficiary and his or her family. Please indicate how effect is given to these provisions of the Convention.

Article 20(f). Please indicate whether use has been made of this provision of the Convention and, if so, supply the text of the relevant legislation.

Article 20(g). Sections 3(III) and 7(II and III) of Act No. 7.998 of 1990 and section 14(II) of resolution No. 64 of 1994 provide for the suspension of unemployment benefit when the person concerned is in receipt of another continuous social security benefit subject to certain exceptions. Please indicate whether and under which provision, in case of suspension, any part of the unemployment benefit which exceeds that other social security benefit, will be effectively paid to the person concerned, in accordance with this provision of the Convention.

Article 22. According to Brazilian legislation, in case of unemployment the worker should withdraw the sum to which he is entitled from his deposit account in the Duration of Employment Guarantee Fund (“Fundo de Garantia por Tempo de Serviço” (FGTS)) and only afterwards have recourse to the unemployment insurance. The Committee would like the Government to explain in detail the manner in which these payments are coordinated with the unemployment benefit.

Article 23(1). Please indicate the provisions of the legislation stipulating that medical care is free of charge for unemployed workers, including members of their families.

Article 24(1). Please indicate whether the Government has considered the possibility of taking into account the periods of unemployment benefit for the acquisition of the right to and, where appropriate, calculation of the cash benefits mentioned in this provision of the Convention.

Article 26. Please indicate which categories of new applicants for employment, out of the ten categories covered by Article 26 of the Convention, receive, under prescribed terms and conditions, the social benefits contemplated by this provision of the Convention.

Article 27(1). The Committee notes that section 11(3) of resolution No. 64 of 1994 allows for the lodging of a complaint against the decision refusing unemployment benefit, of which the person concerned is informed in writing, to the Ministry of Labour which is administering the scheme. Please indicate, with reference to legislative provisions: (1) what provisions ensure the right of appeal against the decision of the Ministry of Labour taken under section 11(3); to an independent body; (2) whether, in communicating its decision refusing the benefit, the Ministry of Labour also informs in writing the person concerned of the reasons for the refusal and the procedures available for appeal of its decision; and (3) how these procedures are operating in practice, taking into account the Convention’s requirement that they should be “simple and rapid”.

Article 27(2). Please indicate the provisions of the legislation which ensure the possibility for the claimant to be represented or assisted in the appeal procedure by a qualified person of his or her choice or by a delegate of a workers’ organization or of an organization representative of protected persons.