Collective Bargaining Convention, 1981 (No. 154) - Brazil (Ratification: 1992)

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes the Government’s reply to the observations on the application of the Convention made in 2011 by the Union of Hotel, Bar and Allied Workers of São Paulo and Region (SINTHORESP) and the National Confederation of Tourism and Hospitality Workers (CONTRATUH) on collective bargaining problems relating to the hiring of workers with disabilities by a multinational enterprise. The Committee notes the Government’s statement suggesting that the parties should request assistance from the Ministry of Labour and Employment for the organization of conciliation meetings to resolve the issue through dialogue.

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

Article 1 of the Convention. The Committee recalls that in its previous comments it referred to the need to recognize the right of state public servants to engage in collective bargaining with respect to their terms and conditions of employment. The Committee recalls that in its previous direct request it noted the Government’s indication that discussions under way in the National Labour Forum (FNT) are expected to yield regulations determining procedures for the exercise of collective bargaining and methods of dispute settlement for public, federal, state and municipal officials. The Committee notes the Government’s indication in its report that, in order to follow up the discussions in the FNT to promote collective bargaining in the public service, it sent Presidential Memorandum No. 58 to the National Congress on 14 February 2008 in order to regulate collective bargaining in the public sector. The Memorandum emphasizes that the provisions of the Convention will contribute towards improving labour relations in the public administration. The Committee hopes that the Government will take the necessary steps in the near future to ensure that public officials enjoy the right to collective bargaining with regard to their terms and conditions of employment, as provided for in Article 1 of the Convention. The Committee requests the Government to provide information in its next report on any developments in this respect.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report.

Article 1 of the Convention. The Committee recalls that in a previous direct request it referred to the need to recognize the right of state public servants to engage in collective bargaining over their terms and conditions of employment. The Committee notes the Government’s indications as follows: (1) the members of the staff of public enterprises and mixed economy companies are governed by the rules of private law, which allow them to organize, take strike action and conclude collective agreements or accords; (2) public servants enjoy the right to organize, but cannot exercise the right to collective bargaining for the determination of their conditions of employment, principally with regard to economic terms; (3) the provisions of Articles 37 and 61 of the National Constitution prevent public servants from exercising the right to collective bargaining; (4) there is in operation a Permanent National Negotiation Board composed of representatives of the Government and the trade unions. The objective and purpose of this Board is to establish methods for dealing with disputes and demands relating to industrial relations in the federal public administration and to reach negotiated solutions in the interests of both parties, until a system of permanent negotiation is established; and (5) it is envisaged that the outcomes of the current discussions in the National Labour Forum (FNT) will include regulations determining procedures for the exercise of collective bargaining and methods of dispute settlement for public federal, state and municipal officials. The draft regulations will be formulated within 120 working days of the transmission of the FNT’s proposal to the National Congress.

In these conditions, the Committee hopes that, as a result of the FNT’s proposals, the National Congress will adopt the necessary measures so that state public officials enjoy the right to the collective negotiation of their terms and conditions of employment, as provided for in Article 1 of the Convention. The Committee requests the Government to keep it informed of any progress in this respect.

Article 8. Declaration that the provisions of a collective agreement are null and void where they are contrary to the standards established by Government economic or wage policy (section 623 of the Consolidation of Labour Laws (CLT)). When it examined the application of Convention No. 98 in 2003, the Committee had noted the Government’s indication that the FNT intends to review the labour and trade union legislation and that it is hoped that, when the work of the Forum has been completed, all the current obstacles to full freedom of association and collective bargaining that exist in the legislation will have been overcome. The Committee hopes that the above section of the CLT will be repealed in the near future.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report.

Article 1 of the Convention. The Committee notes the Administrative Reform, approved by Constitutional Amendment No. 19/98, removing the employees of the public administration, independent entities and public foundations, from the scope of the single legal regime, and establishing a distinction between posts, employment and public functions. However, the Committee notes the Government's indication that the conditions of employment of public servants, whether in respect of posts, employment or functions, continue to be determined by law and are not subject to collective bargaining. In this regard the Committee notes that the technical assistance mission that took place from 26-30 April 1999 identified the need to organize a tripartite seminar with ILO participation to discuss the theme of collective bargaining, which would also include the public administration and the public sector in general, and that this would be decided upon shortly. Under these circumstances the Committee expresses the hope that the forthcoming debate will lead to early action to remove the current obstacles to recognition of state public servants' right to bargain collectively their conditions of employment. The Committee asks the Government to keep it informed of all progress in this regard.

The Committee also notes draft Act No. 4811/98, under examination by the Chamber of Deputies, by virtue of which persons holding posts in the usual state occupations will be governed by Act No. 8112/90, which provides that the personnel employed by the Administration (as of the date of entry into force of the Act) shall be governed by the Consolidation of Labour Laws (CLT).

Article 6. The Committee notes that the Government indicates in its report that section 114(1) of the Federal Constitution refers to arbitration in collective disputes and establishes that "where collective bargaining fails, the parties may call on arbitration"; arbitration, including in cases of collective disputes, is thus voluntary.

Article 8. Declaration of nullity of the provisions of a collective agreement where they are contrary to the standards established by government economic policy or wage policy. In this connection the Committee notes that it is clear both from the Government's report on Convention No. 98 and from the report of the mission, that the Government and the social partners are in agreement on the formal repeal of this Article, which is not applied in practice. The Committee firmly hopes that this repeal will be undertaken in the near future.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the information supplied by the Government in its report and recalls that its previous comments referred to the following matters:

Article 1 of the Convention. Taking into account the fact that in Brazil the principle of collective bargaining is not applicable to public servants (articles 7 (XXVI) and 39(2) of the Constitution), the Committee requested the Government to indicate the measures and any procedures that it intended to adopt, in accordance with Article 1, paragraph 3, of the Convention, to encourage collective bargaining by employees of the public administration.

In this respect, the Committee notes the Government's statement in its report that employees in the public administration are prevented from engaging in collective bargaining, in accordance with a decision of the Supreme Federal Court, which declared unconstitutional section 240(d) of Act No. 8112/90 (single legal status governing public servants), which provided for the right of public servants to bargain collectively. The Committee also takes due note that the Executive Authority will shortly submit to the National Congress a draft reform of the Constitution, proposing significant changes in the organization of the State and in the conditions of service of public servants, in which it will make a distinction between officials engaged in the administration of the State and other public servants. According to the information provided in the report, it is to be hoped that the decisions reached by Congress in this respect will also cover collective bargaining in the public sector.

The Committee expresses the firm hope that the forthcoming amendments will make it possible for employees in the public administration to negotiate collectively their terms and conditions of employment, particularly in the case of public servants not engaged in the administration of the State, taking into account the comments made by the Committee in the context of Convention No. 98, which has been ratified by Brazil. The Committee requests the Government to provide information in this respect.

Article 5. The Committee requested the Government to indicate the specific measures taken so that collective bargaining is made possible for all the groups of workers to whom this Convention applies, including workers in the private sector and employees in the public administration, in respect of all the matters referred to in Article 2 of the Convention.

In this context, the Committee takes due note of the legal measures reported by the Government, both as regards the Constitution and Consolidation of Labour Laws, to encourage the utilization of collective bargaining to resolve labour issues, as well as the practical measures adopted to promote collective bargaining in the country. In particular, the Committee takes note of the establishment of sectoral chambers of tripartite composition in which matters related to terms and conditions of employment are discussed, as well as the promotion by the regional delegations of the Ministry of Labour of round-table negotiations between workers and employers to resolve individual and collective disputes.

Articles 6 and 8. The Committee notes that the Government's report does not contain a reply to its comments on the matters raised in its previous direct request concerning recourse to compulsory arbitration and the declaration by the authorities that collective agreements are void.

In this respect, the Committee noted the existence of provisions in the legislation allowing the public authorities to intervene in the collective bargaining process and to declare void collective agreements which have been concluded and arbitration awards (section 623 of the Consolidation of Labour Laws, as amended by Act No. 5584, of 26 June 1970, Legislative Decree No. 229, of 28 February 1967, and Decree No. 1632, of 4 August 1978). The Committee recalls that, except in the case of essential services, the imposition of compulsory arbitration when the parties do not reach agreement, as well as the declaration by the authorities that collective agreements freely agreed upon by the parties are void, is incompatible with the principle of free and voluntary negotiation of collective agreements established by the Convention. In this respect, the Committee requests the Government to inform it of any measure taken so that the legislation permits workers and their organizations to conclude collective agreements freely and voluntarily without interference by the public authorities.

The Committee once again requests the Government to indicate the progress made in the adoption of Bill No. 1232-A/91 respecting collective bargaining, to which it referred in its previous report, and to transmit the text of the above Bill when it has been adopted.

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

The Committee notes the information supplied by the Government in its first report on the Convention, concerning which it makes the following comments:

Article 1 of the Convention. Article 7(XXVI) of the Constitution, which sets out the principle of collective bargaining, is not applicable to public officials (article 39(2) of the Constitution). In this respect, in relation to Convention No. 98, the Committee has indicated to the Government that the exclusion from its scope of persons who are not engaged in the administration of the State is not compatible with the Convention.

The Committee hopes that the Government will indicate in its next report the measures and possible modalities of application which it intends to adopt, in accordance with Article 1, paragraph 3, of the Convention, to encourage collective bargaining by employees of the public administration.

Article 5. The Committee requests the Government to indicate the specific measures taken so that collective bargaining is made possible for all the groups of workers to whom this Convention applies, including workers in the private sector and employees in the public administration, in respect of all the matters referred to in Article 2 of the Convention.

Articles 6 and 8. The Committee notes the provisions in the legislation which allow the public authorities to intervene in the collective bargaining process and declare void collective agreements which have been concluded or arbitration awards (section 623 of the Consolidation of Labour Laws, as amended by Act No. 5584, of 26 June 1970, Legislative Decree No. 229, of 28 February 1967, and Decree No. 1632 of 4 August 1978). The Committee requests the Government to indicate whether in practice disputes in essential services or activities have been submitted to compulsory arbitration. If so, please indicate the type of services or activities and the circumstances.

The Committee also requests the Government to indicate the stage reached in the adoption of Bill No. 1232-A/91 respecting collective bargaining, which was referred to in the report, and to transmit the text of the above Bill when it has been adopted.