Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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

The Committee notes the observations of the National Confederation of Workers in Teaching Establishments (CONTEE), the International Trade Union Confederation (ITUC) and the Single Confederation of Workers (CUT), received respectively on 28 March, 1 and 2 September 2022, and which concern matters examined by the Committee in the present comment.

The Committee also notes the joint observations of the International Organisation of Employers (IOE) and of the National Confederation of Industry (CNI) received on 30 August 2022 and which also concern matters examined by the Committee in the present comment.

The Committee recalls that in its previous comment, it requested the Government to respond to the observations submitted in 2021 by the ITUC, the CUT and the CONTEE which contain, in particular, allegations relating to: (i) the assassination of three trade union leaders in 2020 and several cases of death threats; and (ii) increased violations of collective bargaining rights in the context of the economic crisis resulting from the COVID-19 pandemic.

In this regard, the Committee notes the Government’s comments in response to the various observations submitted. Concerning the Government’s response to the 2021 allegations by the CUT on the adoption of emergency measures in the context of the COVID-19 pandemic which may have violated the right to collective bargaining, through the introduction of Provisional Measure 1045/2021 (PM 1045/2021), the Committee notes the Government’s indication that PM 1045/2021 is no longer in force. However, the Committee also notes from the 2022 observations made by the CUT that certain measures and provisions contained in PM 1045/2021 that were criticized in the Committee’s previous comment have been reintroduced in positive law through Acts Nos. 14.437/2022 and 14.370/2022. The Committee requests the Government to provide its comments in this respect.

Application of the Convention and respect for civil liberties. In its previous comments, the Committee noted the ITUC’s allegations relating to the assassination of three trade union leaders and trade unionists in 2020, as well as several cases of death threats against other trade union leaders and had requested the Government to provide its comments in this regard. The Committee notes with regret that the Government confines itself to indicating in a general manner that Brazilian legal system is equipped with the necessary mechanisms to prosecute and sanction possible perpetrators of acts of anti-union violence, without giving any information on the different acts to which the ITUC refers. In this regard, the Committee notes with deep concern the following allegations made by the ITUC: (i) the assassination on 28 February 2020 of Mr Paulo Silva Filho, member of the Federation of Rural Workers and Family Farmers of the State of Pará (FETAGRI-PA); (ii) the assassination on 23 July 2020 of Mr José Diaz Hamilton de Moura, President of the Union of Drivers and Goods Transport Workers, Transport Logistics and Specialized Enterprises of Belo Horizonte and the region (SIMECLODIF); (iii) the assassination on 6 November 2020 of Mr João Inácio da Silva, President of the Workers’ Cooperative of Montes Belos; (iv) the death threats received in 2020, and related to their trade union activities, by Mrs Tamyres Filgueira, coordinator of the Union of Technical and Administrative Workers of the UFRGS, UFCSPA and IFRS (ASSUFRGS); Mr Aldo Lima, President of the Union of Heavy Goods Drivers of Recife and by the union leaders of the Union of Oil Workers of São José dos Campos and its region. Recalling that the rights contained in the Convention, in particular those relating to free and voluntary collective bargaining, can only be exercised in a climate free from violence and threats, The Committee urges the Government to ensure that the necessary measures are taken to: (i) identify and punish the perpetrators and instigators of the alleged crimes; and (ii) ensure effective protection for the trade union leaders whose bodily integrity is under threat. The Committee requests the Government to provide information in this regard without delay.

Article 4. Promotion of collective bargaining.Application of the provisions of Act No. 13.467 regarding collective bargaining in the context of the COVID-19 pandemic. The Committee recalls that in its previous comments it had asked the Government to make, in consultation with the representative social partners, a certain number of amendments to the provisions of Act No. 13.467 of 2017 related to collective bargaining, in particular concerning the possibility to derogate through collective bargaining a substantial number of protective provisions of the labour legislation, and those provisions allowing, for certain categories of workers, the setting aside, through individual labour contracts, of the protective clauses of collective agreements. In their 2021 observations, the ITUC, the CUT and the CONTEE expressed concern at the implementation of these provisions in the context of the economic crisis provoked by the COVID-19 pandemic, which could, in their view, result in workers being obliged to accept a steep deterioration in their conditions of work and employment. The Committee notes the Government’s indications, which coincide with those of the CNI and the IOE to the effect that: (i) since the 2017 reform, the number of collective agreements concluded has remained relatively stable, going from 47,572 in 2017 to 42,303 in 2019 (-11 per cent), falling to 36,011 in 2020, as a result of the COVID-19 pandemic, and going back up to 41,951 agreements concluded in 2021; (ii) the 21 per cent fall in unionization underlined by the ITUC cannot be imputed to the 2017 reform, but is part of a long-term phenomenon also visible in numerous other countries; (iii) the primacy of collective bargaining over labour legislation (except for constitutionally protected rights) – recognized as constitutional by the Supreme Federal Court by a judgment of June 2022 – allowed the social partners to decide together on the best approaches to the crisis, according to their specific situations, and to guarantee the legal security of the agreements concluded; and (iv) the economic and social effects of the crisis were greatly reduced by the special protection measures taken by the Government.

The Committee duly notes the elements provided by the Government at the same time noting that the 2022 observations of the ITUC, CUT and the CONTEE maintain similar allegations to those of previous years. While reiterating its previous comments relating to the need to revise the different aspects of Act No. 13.467 cited above, in order to ensure their compliance with Article 4 of the Convention, the Committee requests the Government to continue to communicate statistics on the number of collective agreements concluded, specifying their level (enterprise or sector), the sectors concerned, and the number of workers covered. The Committee also requests the Government to provide information on the frequency of agreements that contain clauses derogating from the legislation, giving details of the nature and scope of such clauses.

Finally, the Committee notes the elements provided by the Government regarding the other points examined by the Committee in its previous comments and concerning the application of Articles 1 and 4 of the Convention. The Committee notes that the positions taken, and the information provided are essentially the same as those provided by the Government in its previous reports. The Committee, while reiterating its previous comments, will examine these matters in the framework of the regular reporting cycle and requests the Government to provide all relevant information in this regard.

The Committee is raising other matters in a request addressed directly to the Government.