Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Employment Policy Convention, 1964 (No. 122) - Brazil (Ratification: 1969)

The Committee notes the observations of the Trade Union of Pernambuco Doctors (SIMEPE) and the Federal Council of Medicine (CFM) of 21 January 2015, as well as the Government’s response thereto, dated 5 November 2015. In addition, the Committee notes the observations of the Single Confederation of Workers (CUT) of 1 September 2017, as well as the observations of the National Association of Labour Court Judges (ANAMATRA) received on 1 June 2018. The Committee requests the Government to provide its comments in respect of the observations made by the CUT and ANAMATRA.

Legislative developments. In its observations, the CUT alleges that the Labour Reforms (Reforma Trabalhista) introduced by Law No. 13467 of 13 July 2017, which modified the Consolidated Labour Law of 1943, substantially alter Brazilian employment policy. The CUT observes that, from the workers’ perspective, the Labour Reforms will have extremely negative impacts on the creation of decent jobs and thus directly contravene the objectives of the Convention. In particular, the CUT recalls that Article 1 of the Convention requires the national employment policy to be designed with the objective of promoting full, productive and freely chosen employment. It adds that the jobs to be created through the vehicle of public policies should be productive and freely chosen, and workers should not be subjected to socio-economic conditions that force them to accept any kind of job in order to survive. In this context, the CUT points to section 442-B of Law No. 13467, which establishes the category of the “autonomous exclusive” who may work exclusively and continuously for an employer, yet not be considered an employee as defined under the Consolidated Labour Law. The CUT alleges that section 442-B destroys the very notion of employment, employer and employee, directly affecting employment policy. Moreover, the CUT alleges that the Labour Reforms were adopted in contravention of Article 3 of the Convention, as they were approved without any consultation with the workers’ organizations or the persons affected. While noting that the Government has not yet provided its comments in response to the observations of the CUT and ANAMATRA, the Committee nevertheless requests the Government to provide detailed information on the manner in which Law No. 13467 – particularly section 442-B – has been applied, and to communicate copies of any judicial decisions concerning the application of the provisions of this Law.

Article 1 of the Convention. Implementation of an active employment policy in the framework of a coordinated social and economic policy. Employment trends. In its previous comments, the Committee requested the Government to continue providing detailed information on the policies implemented and the measures adopted to achieve the objectives of the Convention, as well as information on the impact of the Programme to Accelerate Growth (PAC) and the Better Brazil plan (Brasil Maior) plan in promoting productive employment. The Government reports that its strategy to create jobs and generate income is centred on stimulating innovation and productive activity through the provision of credit, which it considers to be a sustainable means of integrating persons into the productive economy. It adds that the objective of its Programme for Employment Creation and Income Generation (FAT-PROGER) is to stimulate income generation through providing lines of credit at subsidized rates, with the aim of promoting increased production, thus increasing demand for labour. The Government indicates that FAT-PROGER makes long-term investments in small businesses, cooperatives and productive associations and is present in 3,600 municipalities. The Government indicates that, in 2016, FAT-PROGER granted 5 billion Brazilian reals (BRL) in credit lines for businesses. The Government also highlights the INOVACRED Programme, which forms part of the Brasil Maior plan, with the aim of supporting economic growth by investing in innovation. From 2014 to 2017, INOVACRED made BRL533 million available to companies for this purpose. In addition, the National Programme for Guided Productive Microcredit (PNMPO) extends microcredit to small entrepreneurs through a network of specialized institutions that also provide technical guidance necessary for the sustained development of these undertakings. In 2016, the PNMPO made BRL11.18 billion available to 3.7 million beneficiaries. The Government notes that women make up 60 per cent of PNMPO clients, and that 90 per cent of all clients are own-account operators. The Committee also notes the rise in unemployment which, according to data published by the Economic Commission for Latin American and the Caribbean (ECLAC), rose to 13.7 per cent in the first quarter of 2017, falling in the third quarter to 12.4 per cent. The Committee requests the Government to provide updated detailed information, including statistical data disaggregated by sex and age on trends in urban and rural areas and in the different regions, on employment, unemployment and visible underemployment. It further requests the Government to continue to provide comprehensive information on measures taken or envisaged to achieve the objectives of the Convention, as well as on the impact of such measures.

Education and vocational training. Groups vulnerable to decent work deficits. In its previous comments, the Committee requested the Government to continue to provide information on measures adopted to increase the labour market participation of specific groups, such as young persons, older workers, female jobseekers, migrant workers, ethnic minorities and persons with disabilities. The Government reports that the National Skills Plan (PNQ) was restructured in April 2017 and is now known as the Brazilian Programme for Social and Professional Skills (Qualifica Brasil). Its objective is to promote qualification and professional certification in the framework of the unemployment insurance programme within the National Employment Service (SINE). Qualifica Brasil places priority on specific groups, including the unemployed, those working in jobs affected by technological changes, young persons and others. It offers qualification courses, including distance learning and free courses at participating institutions, and professional certification recognizing acquired knowledge, competencies and professional experience. The Committee notes the Government’s indication that, according to the Brazilian Statistical and Geographical Institute (IBGE), more than 40 million people – almost half of young persons between 15 and 29 – are interested in professional courses, but only 2.2 per cent have the means to do so. With respect to youth employment, the Government indicates that the programme Projovem Trabalhador – Juventude Cidadã of the Ministry of Labour and Employment is being restructured. The programme, which seeks to prepare young persons aged between 18 and 29 years for the labour market, benefited 1,331,948 young people between 2008 and 2013. The Government also refers to the Pronatec programme created in 2011 to extend technical and professional education courses, indicating that in the second half of 2017, the Ministries of Labour and Education will launch a study analysing the placement of qualified young persons in the labour market. In addition, the Government refers to the Brazilian apprenticeship programme, which aims to promote the professional qualification and integration of young persons aged 14–24 into the labour market. According to the data published by the Ministry of Labour, from 2005 to 2017, 3,051,942 young persons participated in the apprenticeship programme. The Committee reiterates its request that the Government provide information on the measures adopted to increase the labour market participation of groups vulnerable to decent work deficits, such as young persons, older workers, women jobseekers, migrant workers, ethnic minorities and persons with disabilities.

The More Doctors (Mais Médicos) Programme. In their observations, the SIMEPE and CFM allege non-observance of a number of ILO Conventions, including Convention No. 122, in relation to the More Doctors (Mais Médicos) Programme. They indicate that in creating the programme, the Government engaged the services of Cuban doctors working for the Cuban Ministry of Health as cheap labour, paying them less than Brazilian doctors, under conditions in which they were not able to freely choose their employment. Moreover, the SIMEPE and CFM allege that the Cuban doctors were being sent to Brazil as medical exchange students, to perfect their skills, and were restricted from practising medicine, whereas in reality they worked providing healthcare services in rural areas for the State Health Service (SUS). In its 2015 response, the Government indicates that the project was established to address the shortage of doctors in the country, particularly in rural areas, and selects both Brazilian and non-Brazilian medical graduates to provide primary care services in underserved areas. The Government indicates that the project is an international medical exchange programme rather than an employment relationship sensu stricto, referring to Law No. 12.871/2013, which created the programme, section 17 of which provides that “the activities carried out in the More Doctors Programme do not create any relationship”. The Government adds that the activities carried out are not for economic gain, but that the participating doctors receive scholarships and other allowances for their travel and installation expenses and that, after the first year, it was able to attract participants from more than 40 different nationalities, in addition to Cuban doctors employed by the Cuban Ministry of Health. The Government indicates that the programme combined a set of incentives – educational, monetary, regulatory and clinical support – to attract doctors to the most underserved areas. The Committee requests the Government to provide information on the current status of the More Doctors Programme, including statistical information disaggregated by nationality, on the number of participants, as well as information on the conditions afforded by the programme, including the amounts received in the form of remuneration, allowances, etc.

Article 3. Consultations with the social partners. Noting the CUT’s observations concerning the adoption of the Labour Reforms, the Committee requests the Government to provide updated information on consultations held with the social partners and affected persons with respect to the development and implementation of employment policy and active labour market measures, including for groups vulnerable to decent work deficits.