Labour Relations (Public Service) Convention, 1978 (No. 151) - Brazil (Ratification: 2010)

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

The Committee notes that a representation submitted under article 24 of the ILO Constitution by the Confederation of Brazilian Trade Unions (CSB) and the Union of Civil Servants of the Federal Legislative Authority and the Federal Court of Auditors (SINDILEGIS) alleging non-observance by Brazil of the Convention was declared receivable by the Governing Body in November 2022 (GB.346/INS/18/9). The aforementioned organizations allege that all provisions of the Convention have not yet been incorporated into Brazilian law, in particular Articles 7 (procedures for determining conditions of employment) and 8 (settlement of disputes). Pending examination of the representation by the tripartite committee appointed for that purpose, the Committee will not examine the implementation by Brazil of these two Articles of the Convention.

The Committee notes the observations of the Single Confederation of Workers of Colombia (CUT), received on 2 September 2022 and 2 October 2023, concerning the implementation of Articles 7 and 8 of the Convention as well as the general issues addressed in the present comment. The Committee notes the CUT’s allegation that a series of anti-union acts have been committed against the Municipal Public Service Workers’ Union of Criciúma (SISERP). The Committee requests the Government to provide its comments on the observations of the CUT with regard to the situation of SISERP.

Articles 1 and 3 of the Convention. Scope of application of the Convention, public employees’ organizations. The Committee takes due note of the Government’s indication that: (i) the Convention applies equally to all areas of the public service, whether in the executive, legislative or judicial branches, and at all municipal, state and federal levels; and (ii) according to the national trade union register, there are 2,726 trade union organizations (trade unions, federations and confederations) in Brazil representing public servants or employees, whether municipal, state or federal, a figure corresponding to some 16 per cent of the active trade unions in the country.

Articles 4 and 5. Protection against anti-union discrimination and interference. In its previous comments, having noted the existence of legislation prohibiting anti-union discrimination in general and guaranteeing immunity from dismissal for trade union representatives, the Committee requested the Government to take all the necessary measures to adopt legislation that explicitly provides remedies and sufficiently dissuasive penalties for acts of anti-union discrimination against members of a public service trade union and acts of interference. The Committee also requested the Government to provide statistics on the number of cases concerning anti-union practices in the public service brought before the courts. The Committee notes the Government’s reference once again to the constitutional and legal provisions referred to in previous reports that prohibit anti-union discrimination in general and guarantee immunity from dismissal for trade union representatives, both for the category of public employees covered by the Consolidation of Labour Laws (CLT) (and under the jurisdiction of the labour courts) and the category of public servants covered by the Federal Civil Service Statute (Law No. 8112/90) but whose disputes are not under the jurisdiction of the labour courts. The Committee notes the Government’s reference to various bills, now dating back several years, to regulate anti-union acts (Bills Nos 36/2009, 75/2009, 679/2009 and 1493/2015). The Committee further notes the observations of the CUT emphasizing the protective nature of Law No. 8112/90. The Committee notes that the above information suggests that the implementation of Articles 4 and 5 has not given rise to significant change since its previous comment. It further notes that the Government has not provided the information requested on the number of cases concerning anti-union practices in the public service brought before the courts. Emphasizing again the need to adopt specific legislative provisions in relation to anti-union discrimination and interference, the Committee once again finds itself obliged to reiterate its request and expects the Government to take all the necessary measures to adopt legislation that explicitly provides remedies and sufficiently dissuasive penalties for acts of anti-union discrimination against members of a public service trade union and acts of interference. The Committee requests the Government to indicate in its next report any developments in this regard and to provide statistics on the number of casesconcerning anti-union practices in the public service brought before the courts.

Article 6. Facilities afforded to workers’ representatives. The Committee notes the observations of the CUT that section 92 of Act No. 8112/90 imposes substantial restrictions on the number of representatives of public employees eligible for unpaid trade union leave (two for organizations with up to 5,000 members, four for organizations with 5,000 to 30,000 members and eight for organizations with more than 30,000 members). The Committee requests the Government to reply to the observations of the CUT and to provide clarification on the time credit system (total or partial hours) applicable to representatives of public employees.

In its previous comments, the Committee requested the Government to provide information on facilities other than trade union leave afforded to representatives of public officials in order to enable them to carry out their functions promptly and efficiently (for example, the collection of trade union dues, prompt access to management and access to the workplace, availability of premises, office equipment, availability of noticeboards and so on). The Committee notes the Government’s reference to section 240 of Law No. 8112/90 which, in addition to establishing immunity from dismissal for trade union representatives provides, in consideration of public service workers’ organizations, a mechanism for the collection of trade union dues. The Committee requests the Government to supplement this information by indicating the other facilities that may be afforded to public service workers’ representatives.

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020), which the Committee is examining principally in the context of the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), as well as in the present comment. The Committee proceeded to update the examination of the application of the Convention undertaken last year on the basis of the supplementary information received from the Government and the social partners this year (see Articles 7 and 8 below).

The Committee notes: (i) the joint observations of the Single Confederation of Workers (CUT), the Confederation of Brazilian Trade Unions (CSB) and Força Sindical, received on 12 June 2020 and examined in the context of Convention No. 98; (ii) the observations of Public Services International (PSI), received on 29 September 2020, which raise issues examined in the context of Convention No. 98 and allege an absence of dialogue between the Government and representatives of public servants, expressing regret that in April 2019 the Government abolished the Standing National Round Table for Negotiations, a forum which, according to PSI, has been essential in the context of the COVID-19 pandemic for negotiating and regulating employment relations in the public health sector and for minimizing the negative consequences in this fundamental service; (iii) the observations of the CUT, received on 1 October 2020, reiterating its previous observations and asserting that the Government has not given any consideration to the Committee’s previous comments; and (iv) the observations of the National Confederation of Education Workers (CNTE), received on 1 October 2020, and the Government’s reply to them. The Committee also takes note of the Government’s replies to several issues which were raised in the observations of the CUT and PSI and which it notes in the present comment (see Articles 7 and 8 below) and in its observation on Convention No. 98. The Committee requests the Government to send its comments on the allegations regarding an absence of dialogue between the Government and representatives of public servants and regarding the abolition of the Standing National Round Table for Negotiations. The Committee notes the observations of the Trade Union of Pernambuco Doctors received on 26 February 2015 as well as the Government’s reply thereon. The Committee also notes the observations of the National Confederation of Typical State Careers, the joint observations of the National Confederation of Industry (CNI) and the International Organisation of Employers (IOE) as well as the observations of the CUT received in August and September 2017. The Committee further notes the observations of the National Confederation of Transport, the New Workers Trade Union Confederation (NEST) and the joint observations of the International Trade Union Confederation (ITUC) and CUT received respectively on 1, 10 and 18 September 2019, relating all of them, to matters examined by the Committee in the present comment.

Articles 4 and 5 of the Convention. Protection against anti-union discrimination and interference. The Committee had previously noted the Government’s indications that, “although freedom of association is protected under the Constitution, the national legislation does not define anti-union acts and this prevents the Ministry of Labour and Employment from taking effective preventive and repressive measures”. In its last comment, having taken note of legislative provisions which provide for the immunity from dismissal of union leaders for up to one year after their term of office has ended, the Committee had expressed the hope that the Government would take all the necessary measures to adopt a legislation that explicitly provides remedies and sufficiently dissuasive penalties for acts of anti-union discrimination against members of a public service trade union, and acts of interference. The Committee notes that the Government indicates that one obstacle to the creation of a legislation which ensures the effective application of the Convention lies in the structure of the Brazilian Federation, formed by the Union, the States, the Municipalities and the Federal District which guarantees the autonomy, both legislative and organizational, of each entity. The Government indicates, however, that regardless of the absence of a provision which guarantees the protection against acts of anti-union discrimination and interference in the public sector, the legal system has always been strong enough to discourage anti-union practices, that the Penal Code provides for penalties for anyone who seeks to obstruct unionization through violence and threats and anyone who violates the rights established by the labour legislation and that protection against such practices is also afforded through the decisions of the courts. Emphasizing once again the need to adopt specific legislative provisions in relation to anti-union discrimination and interference, the Committee reiterates its request and expects that the Government will take all the necessary measures to adopt a legislation that explicitly provides remedies and sufficiently dissuasive penalties for acts of anti-union discrimination against members of a public service trade union, and acts of interference. The Committee requests the Government to provide information in its next report on any progress achieved in this respect and to submit statistics on the number of cases concerning anti-union practices in the public service brought before the courts.

Article 6. Facilities afforded to workers’ representatives. The Committee recalls that in its previous comments it noted the Government’s indication that the legislation recognizes the right to unpaid trade union leave for public servants elected to union office. The Committee requests once again the Government to provide information on facilities other than trade union leave that are afforded to representatives of public employees’ organizations in order to enable them to carry out their functions promptly and efficiently (for example, the collection of trade union dues, prompt access to the management and the workplace, availability of premises, office equipment, availability of notice boards, etc.).

Articles 7 and 8. Participation of workers’ organizations in determining terms and conditions of employment. In its previous comments, the Committee had noted the Government’s indication that, in consultation with workers’ organizations, a proposal was being developed for the amendment of the legislation in order to establish a standing federal bargaining system, providing permanent mechanisms for dialogue, negotiation and the mediation of disputes, and that these proposed regulations would act as a guide for state and municipal authorities. The Committee observes that, while the Government does not provide further information in that regard, it indicates that, regardless of the absence of a specific legislative provision towards the promotion of collective bargaining in the public sector, in practice, public administration entities have always negotiated with representatives from trade unions of public officials and cites, as an example, the negotiations in the Municipality of Petrópolis. The Committee notes, however, that, in their observations, both the CUT and the NCST indicate that the right to collective bargaining in the public sector is very limited and that, having ratified the Convention, negotiating procedures and mechanisms shall be established in the public administration. The Committee also notes the Government’s indication that, in order to give effect to the Convention, it has established, within the Ministry of Economy, a Department of Labour Relations in the Public Service, which, among other functions, promotes dialogue between public administration entities and organizations representing public employees and proposes measures for the resolution of conflicts that arise in such context. The Committee notes that the Government, in its reply to the 2020 observations of the CUT, reiterates information which it provided previously, emphasizing that the federal structure of the State represents an obstacle to the development of legislation that gives effect to the Convention in the country, since a federal law would not be able to regulate the situation of public servants in other federated entities. The Committee duly notes these indications. Recalling that Brazil has also ratified the Collective Bargaining Convention, 1981 (No. 154), which recognizes the right to collective bargaining for public officials, the Committee requests the Government to provide specific information on the mechanisms that allow workers in the public administration to negotiate their conditions of work and employment as well as information about their application in practice. The Committee further requests the Government to provide specific information on (i) the mechanisms that ensure compliance with agreements concluded in the public administration; and (ii) the various dispute settlement mechanisms existing in the public administration, indicating in this regard the role played by the Department of Labour Relations in the Public Service.

Lastly, the Committee notes that the Committee on Freedom of Association has referred to it the legislative aspects of Case No. 3344 concerning the failure to adopt a Bill on collective bargaining in the public sector and in which the Committee: (i) having noted the presentation of a Bill (No. 719/2019) with a view to establishing general standards for collective bargaining in the public service, expressed the hope that legislation for the application of the Convention would be adopted very soon; and (ii) encouraged the authorities to continue consulting with the social partners on the aforementioned legislation (see 392nd Report, October 2020). The Committee requests the Government to inform of any developments regarding discussion of the aforementioned Bill or any other initiatives aimed at giving full effect to the Convention, and reminds it of the possibility of requesting technical assistance from the Office in this regard.

[The Government is asked to reply in full to the present comments in 2023.]

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the observations of the Trade Union of Pernambuco Doctors received on 26 February 2015 as well as the Government’s reply thereon. The Committee also notes the observations of the National Confederation of Typical State Careers, the joint observations of the National Confederation of Industry and the International Organisation of Employers as well as the observations of the Single Confederation of Workers (CUT) received in August and September 2017. The Committee further notes the observations of the National Confederation of Transport, the New Workers Trade Union Confederation (NEST) and the joint observations of the International Trade Union Confederation (ITUC) and CUT received respectively on 1 September, 10 September and 18 September 2019, relating all of them, to matters examined by the Committee in the present comment.

Articles 4 and 5 of the Convention. Protection against anti-union discrimination and interference. The Committee had previously noted the Government’s indications that, “although freedom of association is protected under the Constitution, the national legislation does not define anti-union acts and this prevents the Ministry of Labour and Employment from taking effective preventive and repressive measures”. In its last comment, having taken note of legislative provisions which provide for the immunity from dismissal of union leaders for up to one year after their term of office has ended and recognize the right to trade union leave, the Committee had expressed the hope that the Government would take all the necessary measures to adopt a legislation that explicitly provides remedies and sufficiently dissuasive penalties for acts of anti-union discrimination against members of a public service trade union, and acts of interference. The Committee notes that the Government indicates that one obstacle to the creation of a legislation which ensures the effective application of the Convention lies in the structure of the Brazilian Federation, formed by the Union, the States, the Municipalities and the Federal District which guarantees the autonomy, both legislative and organizational, of each entity. The Government indicates, however, that regardless of the absence of a provision which guarantees the protection against acts of anti-union discrimination and interference in the public sector, the legal system has always been strong enough to discourage anti-union practices and that protection against such practices is also afforded through the decisions of the courts. Emphasizing once again the need to adopt specific legislative provisions in relation to anti-union discrimination and interference, the Committee reiterates its request and expects that the Government will take all the necessary measures to adopt a legislation that explicitly provides remedies and sufficiently dissuasive penalties for all acts of anti-union discrimination against members of a public service trade union, and acts of interference. The Committee requests the Government to provide information in its next report on any progress achieved in this respect and to submit statistics on the number of cases concerning anti-union practices in the public service brought before the courts.

Article 6. Facilities afforded to workers’ representatives. The Committee requests once again the Government to provide information on facilities other than trade union leave that are afforded to representatives of public employees’ organizations in order to enable them to carry out their functions promptly and efficiently (for example, the collection of trade union dues, prompt access to the management and the workplace, availability of premises, office equipment, availability of notice boards, etc.).

Articles 7 and 8. Participation of workers’ organizations in determining terms and conditions of employment. In its previous comments, the Committee had noted the Government’s indication that, in consultation with workers’ organizations, a proposal was being developed for the amendment of the legislation in order to establish a standing federal bargaining system, providing permanent mechanisms for dialogue, negotiation and the mediation of disputes, and that these proposed regulations would act as a guide for state and municipal authorities. The Committee observes that, while the Government does not provide further information in that regard, it indicates that, regardless of the absence of a specific legislative provision towards the promotion of collective bargaining in the public sector, in practice, public administration entities have always negotiated with representatives from trade unions of public officials and cites, as an example, the negotiations in the Municipality of Petrópolis. The Committee notes, however, that, in their observations, both the CUT and the NCST indicate that the right to collective bargaining in the public sector is very limited and that, having ratified the Convention, negotiating procedures and mechanisms shall be established in the public administration. The Committee also notes the Government’s indication that, in order to give effect to the Convention, it has established, within the Ministry of Economy, a Department of Labour Relations in the Public Service, which, among other functions, promotes dialogue between public administration entities and organizations representing public officials and proposes measures for the resolution of conflicts that arise in such context. Recalling that, under Article 7 of the Convention, organizations of public employees shall participate in the determination of terms and conditions of employment, the Committee requests the Government to provide further details on the mechanisms that allow workers to negotiate or participate in the determination of such matters as well as information about their application in practice. It also requests the Government to provide concrete examples of such mechanisms. The Committee further requests the Government to provide more detailed information on the role played by the Department of Labour Relations in the Public Service in promoting dialogue and proposing measures for the resolution of conflicts.

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

The Committee noted in its previous direct request the observations made in 2013 by the Single Confederation of Workers (CUT), which alleged violations of the Convention. The Committee once again requests the Government to provide its comments in this respect.

Articles 4, 5 and 6 of the Convention. Protection against anti-union discrimination and interference; and facilities afforded to workers’ representatives. The Committee previously noted that on several occasions the Government had informed the Committee on Freedom of Association (Cases Nos 2635, 2636 and 2646) that “although freedom of association is protected under the Constitution, the national legislation does not define anti-union acts and this prevents the Ministry of Labour and Employment from taking effective preventive and repressive measures”. The Committee also noted that, during a tripartite seminar organized in 2013 by the Ministry of Labour on the “democratization of the State and participation of stakeholders: anti-union practices and the regulation of Convention No. 151”, high-level Government representatives and those of representative workers’ organizations emphasized the importance of addressing as a priority the regulation of protection against anti-union discrimination. The Committee notes that Act No. 8112 of 11 December 1990 provides for the immunity from dismissal of union leaders for up to one year after their term of office has ended. Union leaders are entitled to trade union leave. Moreover, under the Criminal Code (section 199), the use of serious violence to prevent involvement in a trade union is punishable by imprisonment and fines. Under these conditions, the Committee hopes that the Government will take all the necessary measures to adopt legislation that explicitly provides remedies and sufficiently dissuasive penalties for acts of anti-union discrimination against members of a public service trade union, and acts of interference, and requests it to provide information in its next report on any progress achieved in this respect.

The Committee also requests the Government to provide information on facilities other than trade union leave that are afforded to representatives of public employees’ organizations in order to enable them to carry out their functions promptly and efficiently (for example, the collection of trade union dues, prompt access to the management and the workplace, availability of premises, office equipment, availability of notice boards, etc.).

Articles 7 and 8. Participation of workers’ organizations in determining terms and conditions of employment. The Committee notes the Government’s indications in its report that negotiating bodies exist in various areas and that the result of the negotiations has to be submitted to Congress (or to municipal legislative chambers) as draft legislation. In its previous direct request, the Committee welcomed the Government’s indication that, in consultation with workers’ organizations, a proposal was being developed for the amendment of the legislation in order to establish a standing federal bargaining system, providing permanent mechanisms for dialogue, negotiation and the mediation of disputes, and that these proposed regulations would act as a guide for state and municipal authorities. The Government reiterates this information in its report and indicates that a seminar with broad participation was held in May 2013 on a future proposal for draft legislation. The Committee requests the Government to provide information in its next report on any developments in this respect and hopes to note progress.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes the Government’s first report.

The Committee notes the comments of the Single Confederation of Workers (CUT) of 2013 alleging violations of the Convention in the prefecture of Crateús. The Committee requests the Government to provide its observations thereon.

Articles 4 and 5 of the Convention. The Committee notes that on various occasions the Government has informed the Committee on Freedom of Association (Cases Nos 2635, 2636 and 2646) that “although freedom of association is protected under the Constitution, the national legislation does not provide a precise definition of anti-union acts, which prevents the Ministry of Labour and Employment from taking effective preventive and repressive measures”. The Committee also notes that, during a tripartite seminar organized by the Ministry of Labour in 2013 on “Democratization of the State and participation of stakeholders: Anti-union practices and regulation respecting Convention No. 151”, high-level government representatives and those of representative workers’ organizations emphasized the importance of addressing as a priority the regulation of protection against anti-union discrimination. Under these conditions, the Committee hopes that the Government will take all the necessary measures for the adoption of legislation explicitly establishing remedies and sufficiently dissuasive penalties against acts of anti-union discrimination and interference and asks it to provide information in its next report on any progress in this respect.

Article 6. The Committee requests the Government to provide information on the facilities afforded to organizations of public employees in order to enable them to carry out their functions promptly and efficiently (for example, the check-off of trade union dues, the granting of free time without loss of wages, allowances and social benefit so that representatives can discharge their functions, access without delay to the management and the workplace, availability of premises, office equipment, availability of notice boards, etc.). The Committee also requests the Government to indicate whether the facilities concerned are granted under the provisions of the legislation, collective agreements, arbitration awards or practice.

Articles 7 and 8. The Committee welcomes the Government’s indication that, in consultation with workers’ organizations, a proposal is being developed for the amendment of the legislation with a view to the establishment of a standing federal bargaining system, offering permanent mechanisms for dialogue, negotiation and the mediation of disputes, and that this proposed legislation will act as a guide for state and municipal authorities. The Committee requests the Government to provide information in its next report on any developments in this respect.