Allegations: The complainant organizations allege that SINTHORESP has been
unfairly deprived of the right to represent fast-food workers in the municipality of São
Paulo and has been fined for bringing court proceedings requesting the payment of trade
union contributions
- 187. The Committee examined this case at its May–June 2018 meeting, when
it presented an interim report to the Governing Body [see 386th Report, approved by the
Governing Body at its 333rd Session (June 2018), paras 121–133].
- 188. The complainant organizations presented additional information in
communications received on 31 May and 25 September 2018.
- 189. The Government sent observations in communications of 25 May and 23
October 2018, 30 September 2019 and 1 February 2021.
- 190. Brazil has not ratified the Freedom of Association and Protection of
the Right to Organise Convention, 1948 (No. 87), but it has ratified the Right to
Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective
Bargaining Convention, 1981 (No. 154).
A. Previous examination of the case
A. Previous examination of the case- 191. At its June 2018 meeting, the Committee made the following interim
recommendation concerning the allegations presented by the complainant organizations
[see 386th Report, para. 133]:
- Recalling that it is important for workers to be able to freely choose which
organization will represent them, the Committee requests the Government to send
promptly its observations on the complainant’s allegation that it was deprived of
the right to represent fast-food workers in the state of São Paulo, including
information on the procedures and decisions that led to such situation. The
Committee also requests the complainant to provide more detailed information on the
extent of its representativeness in the state of São Paulo in general and in the
state’s fast-food restaurants in particular as well as updated information on the
court proceeding that SINDIFAST would have initiated against SINTHORESP.
B. Additional information
B. Additional information- 192. In two communications received on 31 May and 25 September 2018,
SINTHORESP provides additional information on the various aspects of this case. The
complainant organization first of all clarifies that: (i) the dispute between SINTHORESP
and SINDIFAST over representation does not concern fast-food restaurants in the state of
São Paulo, but rather those in the municipality of São Paulo, an area with a very high
number of such restaurants; and (ii) the trade union contributions taken away from
SINTHORESP to be paid to SINDIFAST are not, as the Government incorrectly claimed,
compulsory contributions that are contrary to ILO principles and that were in fact
abolished by the 2017 legislative reform, but rather contributions that have been
negotiated under collective agreements and are applicable to workers who are not members
of the union but who derive benefits from the collective agreement (the so-called
“solidarity contributions”).
- 193. SINTHORESP then refers to the dispute that it has before the courts
with SINDIFAST and claims in this respect that: (i) the payments of union contributions
by a number of fast-food restaurants in the municipality of São Paulo to SINDIFAST
instead of to SINTHORESP are fraudulent and are being made without the consent of the
workers concerned, which is a key dimension of freedom of association that is not being
taken into account by the judicial bodies; (ii) SINTHORESP represents fast-food workers
in 35 other municipalities; (iii) the establishment of SINDIFAST has given rise to
external interference by enterprises, which is contrary to Convention No. 98, which has
been ratified by Brazil; and (iv) the collective agreement signed by SINDIFAST has led
to a deterioration of working conditions and has resulted in a 40 per cent reduction in
the wages of the workers concerned, which demonstrates the non-representative character
of this trade union organization.
- 194. Lastly, the complainant organization also refers to the fact that
SINDIFAST instituted a number of judicial proceedings to deprive SINTHORESP of the right
to represent several fast-food restaurants, requesting that the corresponding trade
union dues be returned to it and calling for SINTHORESP to be fined millions of
Brazilian reais. The complainant organization states that, in this context, the labour
court is ordering SINTHORESP to pay out 22 million Brazilian reais (BRL), thereby
threatening the very existence of the trade union organization.
C. The Government’s reply
C. The Government’s reply- 195. By communications of 25 May and 23 October 2018, the Government
provides replies to the recommendation made by the Committee during its first
examination of the case and the additional information sent by SINTHORESP. The
Government refers first to the allegations by the complainant organization that it was
deprived of the right to represent fast-food workers in the municipality of São Paulo,
including information on the procedures and decisions that led to the said exclusion.
The Government states in this regard that: (i) under article 8 of the 1988 Constitution,
the Ministry of Labour cannot intervene in the organization and functioning of trade
unions and it is prohibited to make the establishment of trade unions subject to prior
authorization; (ii) at the same time, by virtue of súmula [summary of case law] No. 677
of the Federal Supreme Court, the Ministry of Labour is responsible for registering
trade union organizations and ensuring that the single trade union principle is
respected; (iii) however, it is not the Ministry’s responsibility to assess the
representativeness of trade unions beyond what is implicitly required by law; (iv)
Brazilian legislation does not contain specific criteria for determining the
representativeness of trade unions; (v) article 8(II) of the Constitution establishes
however the single trade union system, under which it is prohibited to establish more
than one trade union organization, at any level, to represent the same professional or
economic category, in the same territorial area; (vi) within the framework of the single
trade union system, article 571 of the Consolidation of Labour Laws enshrines the
principle of specificity, which allows for the establishment of a new trade union
organization that has a more specific scope of activity than an existing union, which
can lead to a situation in which two trade unions can request the right to represent the
same category of workers; and (vii) the majority of case law and legal doctrine consider
that the principle of specificity should prevail over the principle of
territoriality.
- 196. After having described the general rules and criteria applicable to
the determination of trade union representativeness, the Government refers to the
decision of the Supreme Labour Court granting SINDIFAST the right to represent fast-food
workers in the municipality of São Paulo. The Government states in this respect that the
Supreme Labour Court’s decision of 3 August 2016 was based on the above-mentioned
principle of specificity and that the court considered that SINDIFAST had greater
legitimacy to represent this category of workers because it was devoted exclusively to
fast-food restaurants.
- 197. The Government then refers to the allegations by the complainant
organizations concerning the excessive fines imposed on SINTHORESP by the courts. The
Government states in this respect that: (i) the Government fully respects the
independence of the judiciary; (ii) the courts fined SINTHORESP because they found that
the organization had made use of the judicial system in bad faith by initiating multiple
identical judicial proceedings despite knowing in advance the outcome of these
proceedings; and (iii) this is notwithstanding the fact that in some of the cases
brought by SINTHORESP it is the enterprise that is the subject of the proceedings that
has had to bear the legal costs.
D. The Committee’s conclusions
D. The Committee’s conclusions- 198. The Committee recalls that the present case concerns the situation
of a trade union in the catering sector, SINTHORESP, which, under the legal mechanism of
enquadramento sindical [trade union coverage], has lost the right to represent fast-food
workers in the municipality of São Paulo in favour of SINDIFAST, a decision that is
considered by the complainant organizations to be unfair on the grounds that SINDIFAST
is not representative.
- 199. The Committee takes note of the additional information provided by
the complainant organizations according to which: (i) the workers concerned did not give
their consent before their union dues were diverted to SINDIFAST; (ii) SINTHORESP
represents fast-food workers in 35 other municipalities; (iii) the establishment of
SINDIFAST has led to external interference by enterprises, which is contrary to
Convention No. 98 that has been ratified by Brazil; and (iv) the collective agreement
signed by SINDIFAST has led to a significant deterioration in the working conditions and
pay of the workers concerned, which demonstrates the non-representative character of
this trade union organization. The Committee notes that, for its part, the Government
states that: (i) while it is the responsibility of the Ministry of Labour to register
trade union organizations and ensure respect for the single trade union principle (under
which it is prohibited to establish more than one trade union organization, at any
level, to represent the same professional or economic category, in the same territorial
area), it is not its responsibility to carry out an assessment of the representativeness
of trade unions beyond what is implicitly required by law; (ii) Brazilian legislation
does not contain specific criteria for determining the representativeness of trade
unions; (iii) within the framework of the single trade union system established by the
Constitution, article 571 of the Consolidation of Labour Laws enshrines the principle of
specificity according to which a new trade union organization that has a more specific
scope of activity than an existing union may be established; and (iv) the Supreme Labour
Court relied on the above-mentioned principle of specificity and granted SINDIFAST the
right to represent fast-food workers considering that this organization enjoyed greater
legitimacy owing to the fact that it was devoted exclusively to this type of
restaurant.
- 200. The Committee takes note of this information. The Committee recalls
that the dispute over representation between SINTHORESP and SINDIFAST has arisen in the
context of the Brazilian system of collective labour relations, which is governed by the
single trade union principle, according to which only one trade union organization may
legitimately represent, on a territorial basis that may not be smaller than a
municipality, a given category of workers. The Committee also notes that the single
trade union system, which has been the subject of recommendations by the Committee in
previous cases because of the restrictions it imposes on the right of workers to form
and join the trade union of their choice [see, for example, 325th Report, Case No. 2099,
para. 193], does not prevent disputes over representation from arising when two trade
union organizations claim to be the best qualified to represent a given category of
workers. The Committee also notes that this type of dispute may arise in particular
when, as in the present case, a new trade union is established with a more limited scope
of activity than an existing trade union.
- 201. The Committee notes that, in the context of the dispute over
representation between SINTHORESP and SINDIFAST, neither the complainant organizations
nor the Government provide specific data that would make it possible to assess the
representativeness of each of the two organizations and, in particular, they do not
provide figures on how many members they have in the fast-food sector in the
municipality of São Paulo. The Committee also notes that, in the same vein, the Supreme
Labour Court decision cited by the Government granting representative status to
SINDIFAST is based on the principle of specificity following the exclusive dedication of
that organization to fast-food restaurants.
- 202. The Committee recalls in this respect that workers and employers
should in practice be able to freely choose which organization will represent them for
purposes of collective bargaining [see Compilation of decisions of the Committee on
Freedom of Association, sixth edition, 2018, para. 1359]. The Committee also recalls
that: (i) in order to encourage the harmonious development of collective bargaining and
to avoid disputes, it should always be the practice to follow, where they exist, the
procedures laid down for the designation of the most representative unions for
collective bargaining purposes when it is not clear by which unions the workers wish to
be represented. In the absence of such procedures, the authorities, where appropriate,
should examine the possibility of laying down objective rules in this respect; (ii) in
order to determine whether an organization has the capacity to be the sole signatory to
collective agreements, two criteria should be applied: representativeness and
independence; according to the Committee, the determination of which organizations meet
these criteria should be carried out by a body offering every guarantee of independence
and objectivity; and (iii) where, under the system in force, the most representative
union enjoys preferential or exclusive bargaining rights, decisions concerning the most
representative organization should be made by virtue of objective and pre-established
criteria so as to avoid any opportunities for partiality or abuse [see Compilation,
paras 1382, 1374 and 1369]. In the light of these criteria, the Committee expects that
the disputes over representation, including the present case, will be settled by
applying objective and pre-established criteria for representativeness determined by the
Government in consultation with the social partners, taking due account of the wishes of
the workers concerned.
- 203. The Committee, further notes the Government’s indication that
national legislation does not contain criteria for determining representativeness that
would make it possible to settle the representation disputes that may arise between
several trade union organizations, and observes that this absence may hinder the right
of workers to be represented in collective bargaining by the trade union of their
choice. As Brazil has ratified Conventions Nos 98 and 154, the Committee refers this
legislative aspect to the attention of the Committee of Experts on the Application of
Conventions and Recommendations.
- 204. 204. In relation to the Committee’s request for the complainant
organizations to provide updated information on the court proceedings that SINDIFAST is
said to have initiated against SINTHORESP, the Committee notes that the complainant
organizations allege that; (i) in the context of the legal proceedings initiated by
SINDIFAST to deprive SINTHORESP of the right to represent several other fast food
restaurants, SINDIFAST requested that the corresponding trade union dues be returned to
it and called for SINTHORESP to be fined millions of Brazilian reais; and (ii) in this
context, the labour courts are asking SINTHORESP to pay out BRL22 million, thereby
threatening the very existence of the trade union organization. The Committee notes
that, for its part, the Government does not refer to the proceedings between SINDIFAST
and SINTHORESP, merely recalling that the fine imposed on SINTHORESP by the courts at
the time was based on that trade union organization’s use of the legal system in bad
faith. While noting that it does not have the information that would enable it to
comment specifically on the ongoing proceedings between the two organizations, the
Committee trusts that the application of clear and pre-established criteria for
representativeness, as referred to in the preceding paragraphs, will make it possible to
settle the above-mentioned dispute in accordance with the principles of freedom of
association.
The Committee’s recommendations
The Committee’s recommendations- 205. In the light of its foregoing conclusions, the Committee invites the
Governing Body to approve the following recommendations:
- (a) Taking into account that national legislation does not contain criteria for
determining representativeness that would make it possible to settle the
representation disputes that may arise between several trade union organizations,
the Committee expects that the disputes over representation, including the present
case, will be settled on the basis of objective and pre established criteria for
representativeness determined by the Government in consultation with the social
partners, taking due account of the wishes of the workers concerned.
- (b) The Committee refers the legislative aspects of the case to the Committee of
Experts on the Application of Conventions and Recommendations.
- (c) The Committee considers that this case is closed and does not call for further
examination.