Protection of Wages Convention, 1949 (No. 95) - Brazil (Ratification: 1957)

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

The Committee notes the observations of the National Confederation of Liberal Professions (CNPL) received in 2016. In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on wages, the Committee considers it appropriate to examine Convention No. 131 (Minimum Wage Fixing) and Convention No. 95 (Protection of Wages) in a single comment.

Minimum Wage Fixing Convention, 1970 (No. 131)

Article 4(2), of the Convention. Full consultation with representative organizations of employers and workers. In its previous comments, the Committee requested the Government to provide information on the mechanism and content of the consultations held with employers’ and workers’ organizations to set the minimum wage level. The Committee notes that the Government indicates in its report that consultations concerning the setting of minimum wage result from the fact that wages are fixed through collective agreements and that there are 54,000 such agreements in Brazil. The Committee also notes that the most recent national minimum wage was established in 2018 (Decree No. 9.255 of 2017), pursuant to the provisions of Law No. 13.152 of 2015 which determines the minimum wage-fixing machinery for the period 2016–19. Moreover, the Committee takes note of the creation of the National Council of Labour (Decree No. 9.028 of 2017), as a tripartite consultative body under the Ministry of Labour. The Committee requests the Government to provide information on the process which will be followed to determine the minimum wage-fixing machinery for the next period, including on the consultations with representative organizations of employers and workers to be held in this connection in accordance with Article 4(2).

Protection of Wages Convention, 1949 (No. 95)

Article 1 of the Convention. Components of remuneration. The Committee notes that the CNPL refers to the amendment in 2001 of section 458 of the Consolidation of Labour Laws (CLT) to the effect that certain components of workers’ remuneration would be considered to be of a non-wage nature. In this regard, the Committee notes in particular that, according to sections 457 and 458 of the CLT, the following benefits that may be provided by the employer to the worker are of a non-wage nature: bonuses paid by the employer in relation to good performance (section 457(2) and (4)), food tickets (section 457(2)), medical care, life and accident insurance and private retirement fund (section 458(2)). In this respect, the Committee recalls that, in accordance with Article 1, all the components of workers’ remuneration, irrespective of how they are denominated or calculated, are protected by the Convention (2003 General Survey, Protection of wages, paragraph 47). Accordingly, the Committee requests the Government to indicate how the components of the remuneration which are considered to be of a non wage nature, according to sections 457 and 458 of the CLT, benefit from the protection of the Convention, for example with regard to their regular payment (Article 12).

Articles 8 and 10. Deductions from wages. Protection against attachments. In its previous comments, the Committee requested the Government to clarify the limits applicable to deductions from wages. The Committee notes the Government’s indication in its report that: (i) while the CLT does not establish an overall limit to authorized deductions, section 82 of the CLT, which provides that, where part of the minimum wage is paid in kind, at least 30 per cent of the minimum wage must be paid in cash, can be interpreted to limit deductions to 70 per cent of workers’ wages; and (ii) section 833 of the Code of Civil Procedure (CPC) establishes the general principle of non-attachment of wages, except for the payment of alimony (within the limit of 50 per cent of the net wage) or with respect to workers who earn at least 50 times the minimum wage on a monthly basis.

Article 12. Regular payment of wages. Further to its previous comments on wage arrears in the port sector in the State of Rio Grande Do Sul, the Committee notes that this issue has been addressed through judicial proceedings.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Article 8 of the Convention. Deductions from wages. Further to its previous comment, the Committee notes that following the adoption of Act No. 10820 of 17 December 2003 and its implementing regulation, Decree No. 4840 of 17 September 2003, the overall limit of authorized deductions is now set at 40 per cent of the worker’s wages, including statutory deductions and deductions authorized by the employee. The Government indicates that it decided to set rules on deductions from wages in view of widespread practices whereby employers by virtue of individual agreements retained large amounts from workers’ wages – often equal to the entire amount of the wages – for the repayment of loans and other financial transactions. Recalling that in accordance with Articles 8 and 10 of the Convention, it is important to establish an overall limit beyond which wages cannot be further reduced, in order to protect the income of workers in the case of multiple deductions, the Committee requests the Government to indicate the limit, if any, applicable in the case of authorized attachment of wages (e.g. for the payment of alimony), and whether the 40 per cent limit provided for in Act No. 10820 of 2003 applies also in the case of attachment.

Article 12. Regular payment of wages. With respect to earlier comments made by the Union of Port Services Workers of Rio Grande (SINDIPORG) and the Union of Port Workers of Rio Grande Do Sul (UPERSUL) concerning wage debts owed to its members, the Committee notes that the Government does not provide any new information but merely refers to the principle of separation of powers and the fact that this question falls under the authority of the judiciary. The Committee observes, however, that contrary to what the Government’s report indicates, it does not expect the federal Government to interfere with affairs pertaining to the jurisdiction of state governments, or to impose fines for the non-payment of wages to state government employees. The Committee considers it important nonetheless to receive full information on the outcome of judicial proceedings relating to the settlement of wage arrears – especially when the question is brought to the Committee’s knowledge by a workers’ or employers’ organization through a formal communication – as an indication of the effective implementation of the Convention in practice. The Committee accordingly requests the Government to keep the Office informed of further developments concerning the settlement of wage claims of officials of the State of Rio Grande Do Sul.

Part V of the report form. Application in practice. The Committee notes the statistical information on inspection results for the period 2002–10 which shows that practically half of all wages-related irregularities recorded by the labour inspection services concern delayed payment of wages. The Committee would appreciate if the Government would continue to provide up-to-date information on the practical application of the Convention.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

Article 8 of the Convention. Deductions from wages. The Committee notes the Government’s indication that Legislative Decree No. 5452 of 1 May 1943 (Consolidação das leis do trabalho – CLT) does not establish a maximum limit to the deductions which can be made on wages, but that by virtue of certain court decisions, which prohibit deductions of over 70 per cent of the basic wage of the employee, it is generally accepted that the minimum amount of the net wage which has to be paid is 30 per cent. In this respect, the Committee wishes to draw the Government’s attention to the fact that Article 8 of the Convention provides that deductions from wages shall be permitted only under conditions and to the extent prescribed by the law. It also recalls that deductions should be limited to the extent deemed necessary for the maintenance of the worker and his family and that consequently the level of deductions currently authorized on the basis of case law could be considered as excessively high. The Committee therefore requests the Government to indicate the measures adopted or envisaged to bring the legislation into conformity with this provision of the Convention.

The Committee further notes ruling No. 342 of the Higher Labour Tribunal finding that “deductions made by the employer, with the written authorization of the employee, intended to constitute medical insurance and private insurance, cooperative, cultural, recreational or associative plans, in the interests of the worker and his or her family, are not contrary to the provisions of section 142 of Legislative Decree No. 5452 of 1 May 1943, except where the presence of coercion or other flaws in the giving of consent are proven”. In this respect, the Committee wishes to refer to paragraph 217 of its 2003 General Survey on the protection of wages, which indicates that provisions of national legislation which permit deductions by virtue of individual agreements or consent are not compatible with Article 8, paragraph 1, of the Convention. Although section 142 of the Consolidation of Labour Laws (CLT) is in conformity with this provision of the Convention, the Committee requests the Government to indicate the measures adopted or envisaged to ensure that individual agreements are not a valid legal means of authorizing deductions from wages, except where the national legislation prescribes in a detailed and exhaustive manner the types of deductions for which such agreements may be authorized.

Article 13, paragraph 2. Prohibition upon the payment of wages in taverns, stores for the retail sale of merchandise and places of amusement. The Committee notes the Government’s indication that the payment of wages to young persons under 18 years of age is prohibited in taverns and other similar settings. The Committee requests the Government to indicate the laws or regulations prohibiting the payment of wages in the places referred to above in respect of all workers, as required by this Article of the Convention.

Part V of the report form. The Committee notes the statistical information provided in the Government’s report. It would be grateful if the Government would continue providing general information on the manner in which the Convention is applied including, for instance, extracts from official reports of the inspection services containing indications on the number and nature of infringements reported, information on practical difficulties encountered in the implementation of the Convention, etc.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the information provided in the Government’s report and the attached documents. It notes in particular the indications concerning the definitive payment of the amounts due to the former employees of the Technical Assistance and Rural Development Enterprise (EMATER) of the State of Minais Gerais, as well as the information on the measures adopted to combat degrading work practices, and particularly debt bondage.

1. Further to the previous comments of the Seafarers’ Union of the Port of Rio Grande (SINDIMAR), the Committee notes the Government’s explanations according to which the maritime authorities are empowered to inspect the working and living conditions on board vessels and that the fact that a temporary registration certificate is issued by the maritime authorities does not imply inspection of labour relations, including the payment of wages. The Government adds that the labour inspectorate, which is competent to ascertain labour conditions, including those on board foreign vessels, may seek the immobilization of the vessel, but cannot penalize failure to pay wages on board vessels flying the Ukrainian flag. The Government further indicates that, in cases in which wage arrears are not resolved, the information may be communicated to the country of origin of the vessel and to the ILO. The Committee requests the Government to provide additional information on any further inspections carried out by the labour inspection services on board the vessels in question, particularly with regard to the regular payment of wages, and the action taken as a result by the competent authorities.

2. With regard to the comments made by the Union of Port Services Workers of Rio Grande (SINDIPORG) and the Union of Port Workers of Rio Grande Do Sul (UPERSUL), the Committee notes the Government’s indications that workers’ claims are included in the debts of the State of Rio Grande Do Sul, which are still under investigation in the context of court action, and that the latter State has not yet paid the wage arrears of its officials. Recalling, as the Committee emphasized in paragraph 367 of its 2003 General Survey on the protection of wages, that the Government is bound not only to ensure that the requirements of the Convention are scrupulously applied in respect of workers whose wages are financed directly by the state budget, but also to ensure that it is applied by local authorities and private enterprise, it requests the Government to keep it informed of any developments relating to the definitive settlement of the wages of the officials of the State of Rio Grande Do Sul.

The Committee is also addressing a request directly to the Government on other matters.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the comments made by the Seafarers’ Union of the Port of Rio Grande (SINDIMAR) dated 22 April 2004, and the comments made by the Union of the Port Services Workers of Rio Grande (SINDIPORG) jointly with the Union of Port Workers of Rio Grande Do Sul (UPERSUL), dated 28 January 2005, concerning the application of the Convention as well as the Government’s explanations given in reply.

According to SINDIMAR, the Brazilian Maritime Authority issued a temporary registration certificate (TRC) to two vessels, N/T Dunay and N/T Borislav, both flying the Ukrainian flag despite a number of irregular labour practices, including the non-payment of wages, overtime pay and wage supplements and the refusal to provide the crew with payslips. In its response, the Government refers to the reports of two labour inspection visits carried out four days after the official complaint was received and affirms that no irregularities were observed with respect to the working and living conditions aboard these vessels.

As regards SINDIPORG and UPERSUL, they denounce the persistent failure of the Government of the State of Rio Grande to settle accumulated wage debts totalling BRL 120 million. According to the two trade unions, portworkers are experiencing problems of non-payment of wages since 1998 and despite judicial action and favourable pay orders no real progress has been made. The Government in its reply indicates that because of the specific status of the employees of the port of Rio Grande, the procedure for the settlement of the wage arrears raises constitutional questions and falls within the jurisdiction of the Supreme Federal Tribunal. The Committee notes the Government’s explanations but recalls its primary responsibility for ensuring the scrupulous application and effective enforcement of the Convention. It therefore asks the Government to keep it informed of the evolution of the situation and of any concrete measures taken with a view to settling the outstanding payments and compensating the workers for the injury suffered.

In addition, the Committee recalls that, in its previous observation, it requested the Government to provide clarifications on the exact number of outstanding wage claims and any progress achieved towards the final settlement of the amounts due to former employees of the Technical Assistance and Rural Development Enterprise (EMATER) of the State of Minas Gerais. In the absence of any clear reply in this regard, the Committee reiterates its request and hopes that the Government will supply in its next report full particulars on this matter.

Moreover, the Committee would appreciate receiving up-to-date information concerning the enforcement of the national legislation on wage protection, including statistics on violations reported and sanctions imposed, especially following the enactment of Ministerial Order No. 1.601 of 1996 on the organization of wage debts proceedings and Law No. 9.777 of 1998 on strengthening law enforcement against degrading labour practices.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report and the annexed documentation. With reference to the settlement of the remaining 56 cases of outstanding wage debts owed to ex-employees of the Technical Assistance and Rural Development Enterprise (EMATER) of the State of Minas Gerais, the Committee notes the Government’s statement in reply that out of 338 cases involving that company as defendant, 210 cases were dropped while 128 others are still pending before the Labour Court. Noting the discrepancy between the figures communicated by the Government in its last two reports, the Committee would appreciate receiving further clarifications on the exact number of outstanding wage claims. It also asks the Government to report on any further progress made towards the final settlement of the amounts due.

Moreover, the Committee notes the statistical information supplied by the Government concerning the infringements of labour legislation on wages for the period 1997-99. It also notes the Government’s statement to the effect that the greatest number of violations reported relate constantly to wage arrears. In fact, according to the Government’s report, in 1997, proceedings were initiated in 8,312 cases of wage arrears representing 51 per cent of all wage-related proceedings, the corresponding figures for 1998 and 1999 being 7,035 (48 per cent) and 6,566 (46 per cent) respectively. Similarly, in the first quarter of 2000, there were 1,304 prosecutions regarding wage arrears representing 41 per cent of all the irregularities prosecuted in the field of compliance with labour legislation on wage protection.

Finally, the Committee notes with interest the recent enactment of Ministerial Order No. 1.601 of 1 November 1996 relating to the organization and processing of wage debt proceedings as well as Law No. 9.777 of 29 December 1998 amending the Criminal Code with a view to strengthening law enforcement against degrading labour practices especially in rural areas. In the light of its previous observations made in conjunction with its comments on Conventions Nos. 29 and 105, the Committee hopes that these legislative measures will prove effective in enhancing compliance with the labour legislation on wage protection. The Committee would be grateful if the Government would continue to supply practical information on the supervision but also on the imposition of appropriate penalties to prevent and punish infringements of national laws and regulations giving effect to the Convention.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

1. Non-payment of wages. In its previous comment, with reference to the observation jointly made by the Union of the Technical Assistance and Rural Development Workers of the State of Minas Gerais (SINTER) and the Federation of Unions and Associations of Rural Development Workers of Brazil (FASER) concerning non-payment of wages by the Technical Assistance and Rural Development Enterprise (EMATER) of the State of Minas Gerais, the Committee requested the Government to provide information on any further progress made towards the settlement of the amounts due to the remaining 56 ex-employees of EMATER in accordance with Article 12(2) of the Convention.

The Committee notes the Government's statement in reply that those last 56 workers' cases are still being examined by the judiciary and requests the Government to continue to supply information on any progress made in the settlement of outstanding amounts due, and also on measures taken or envisaged, if there are any, to ensure the application of the Convention in equivalent bodies in other states than Minas Gerais.

2. The Committee also notes the information supplied in the Government's report concerning legislative measures. In particular, Act No. 8860 of March 1994 amends section 458 of the Consolidated Labour Act (No. 5452 of 1 March 1943) concerning the payment of wages in the form of allowances in kind, by adding provisions which stipulate that the lodging and the food supplied as a part of wages should attain their intended purposes, and cannot exceed respectively 25 per cent and 20 per cent of the contractual wage. Act No. 9300 of 29 August 1996 adds to section 9 of Act No. 5889 of 8 June 1973 on rural labour a provision according to which the rural labourers' wage should not include the assignment by the employer of dwelling or goods for production aimed at their subsistence and that of their family when it is provided in the written contract and notified to the relevant union of rural workers.

The Committee notes that these legislative measures have bearing on the application of some provisions of the Convention such as: Article 4 (limitation and conditions of wage payment in kind) and Article 8 (conditions and limits of deductions from wages to be decided by legislation or collective agreement).

In its previous observations, with reference to its comments on Conventions Nos. 29 and 105, the Committee requested the Government to examine the situations also in the light of this Convention. It notes that the Government refers in the report to some provisions of the Consolidated Labour Act which give effect to the provisions of Articles 6, 7, 8 and 9 of the Convention. The Committee points out however that the question is rather of the practical application than that of legislative provisions. It notes that the Government has supplied ample information with regard to Convention No. 29 including that on inspection. Noting the absence of such information regarding Convention No. 95, the Committee requests the Government to supply detailed information on the application in practice of the national legislation giving effect to this Convention, including the two new Acts mentioned above, with particular reference to the situations in rural areas, and referring also to Articles 10 and 14 in addition to the above Articles of the Convention. It asks the Government to include information on any infringements of provisions on wage protection registered by the inspectors and the sanctions imposed in this regard.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

1. Non-payment of wages. The Committee notes the observation jointly made by the Union of the Technical Assistance and Rural Development Workers of the State of Minas Gerais (SINTER) and the Federation of Unions and Associations of Rural Development Workers of Brazil (FASER) concerning non-payment of wages by the Technical Assistance and Rural Development Enterprise (EMATER) of the State of Minas Gerais.

The Committee notes the Government's statement in reply that, out of 3,483 employees and ex-employees making claims, 3,427 have already received the sums due by the time of response and that the payment of amounts due to the remaining 56 ex-employees will be shortly done following the final decisions of labour judiciary. Recalling that the Convention applies to all persons to whom wages are paid or payable (Article 2(1)), the Committee notes that the requirement to ensure the wage payment in accordance with the Convention is not affected by the status of EMATER whether it is a state enterprise or a private one. The Committee requests the Government to continue to provide information on any further progress made towards the settlement of the amounts due to the above ex-employees of EMATER in accordance with Article 12(2), and also on measures taken or envisaged, if there are any, to ensure the application of the Convention in equivalent bodies in other states than Minas Gerais.

2. As to the points raised in the Committee's earlier observation concerning Articles 6, 8, 9 and 10, it notes that the Governing Body at its 264th Session (November 1995) had adopted the report of the tripartite committee, which was entrusted to examine the representation made by the Latin American Central of Workers (CLAT) under article 24 of the Constitution, alleging non-observance by Brazil of Conventions Nos. 29 and 105. It notes that the allegations made, which were considered to be well-founded by the above committee, include several aspects of situations that also fall within the scope of this Convention on the protection of wages. The Committee refers to the provisions, for instance, of Article 4 (limitation and conditions of wage payment in kind), Article 6 (prohibiting employers from limiting the freedom of the workers to dispose of their wages), Article 7 (conditions on the operation of works stores, including the prohibition of coercion to use them), Article 8 (conditions and limits of deductions from wages to be decided by legislation or collective agreement), Article 9 (prohibition of deductions from wages with a view to obtaining or retaining employment), Article 10 (procedures and limits of attachment or assignment of wages) and Article 14 (measures to ensure that workers are informed of the conditions and particulars of wages).

With reference to its comments on Conventions Nos. 29 and 105, the Committee requests the Government to examine the situations also in the light of this Convention, in particular under the Articles cited above, to take all the necessary measures accordingly, and to supply information on them. It also asks the Government to provide information on any infringements registered and the sanctions imposed in this regard.

[The Government is asked to report in detail in 1997.]

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

1. The Committee noted, in its previous comments, the observation made by the Unique Workers' Central (CUT) concerning the payment of wages to some Brazilian workers engaged in civil construction in Argentina, which related to the application of Article 12(1) of the Convention (regular payment of wages). The Committee notes that the CUT withdrew this observation, by its communication to the ILO Office, Brazil, dated 30 May 1994, in view of the improvement brought about to the conditions of employment in the sector by the joint efforts of Brazilian and Argentinean trade unions and of the Ministry of Labour of Brazil.

The Committee hopes that the Government will provide in its future reports information on the application of the Convention in practice, in accordance with point V of the report form, including information on any difficulties encountered.

2. As to the points raised in the Committee's earlier observation concerning Articles 6, 8, 9 and 10, which was made with reference to its comments on Conventions Nos. 29 and 105, it noted that the Governing Body at its 258th Session (November 1993) had entrusted to a tripartite committee, the examination of a representation made by the Latin American Central of Workers (CLAT) under article 24 of the Constitution, alleging non-observance by Brazil of Conventions Nos. 29 and 105. In accordance with its customary practice, the Committee is postponing its comments on these points pending the Governing Body's action on the conclusions and recommendations of the above-mentioned Committee.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

1. The Committee notes the observation made by the Unique Workers' Central (CUT) concerning the application of the Convention. The CUT alleges, among other things, that some Brazilian workers engaged in civil construction in Argentina received their wages only on their return to Brazil, and expresses concern on the possibilities of such occurrences in the framework of the MERCOSUR (Southern Cone Common Market). The Committee notes that the Government has not communicated its comments on this observation, which concerns the application of Article 12(1) of the Convention (regular payment of wages), and requests it to do so.

2. As to the points raised in the Committee's previous observation concerning Articles 6, 8, 9 and 10, which was made with reference to its comments on Conventions Nos. 29 and 105, it notes that the Governing Body at its 258th Session (November 1993) entrusted the examination of a representation made by the Latin American Central of Workers (CLAT) under article 24 of the Constitution, alleging non-observance by Brazil of Conventions Nos. 29 and 105 to a tripartite committee. In accordance with its customary practice, the Committee is postponing its comments on these points pending the Governing Body's action on the conclusions and recommendations of the above-mentioned committee.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee refers to its comments on Conventions Nos. 29 and 105, and in particular, the allegations concerning deductions from wages to cover the transport and food costs of workers in various sectors of agriculture and mining.

The Committee requests the Government to examine these allegations in the light of the provisions of Articles 6 (prohibiting employers from limiting in any manner the freedom of the worker to dispose of his wages), 8 (conditions and limits of deductions from wages to be prescribed by national laws or regulations or fixed by collective agreement), 9 (prohibition of deductions from wages with a view to obtaining or retaining employment) and 10 (procedures and limits of attachment or assignment of wages). It also asks the Government to provide information on any infringements registered and the sanctions prescribed in this regard.