Definitive Report - Report No 6, 1953

Case No 11 (Brazil) - Complaint date: 24-FEB-51 - Closed

A. Analysis of the Complaints

1. 39. In a first communication, dated 24 February 1951, addressed to the United Nations, the complainants made the following allegations:
   • (a) By virtue of Decree No. 23046 of May 1947, the Brazilian Confederation of Labour was declared to be illegal, although it represented a majority of the trade unions,
   • (b) Trade union elections were banned in 1943. When it arranged for trade union elections in 1950, the Government, in violation of Constitutional provisions, required candidates to make a sworn declaration as to their " ideology ", the object being to prevent persons being candidates if they had participated in strikes or had presented demands to claims commissions or had ever been arrested on the ground of their union or political activities.
   • (c) By Decree No. 9070 of 1946, strikes are declared to be anti-social acts and strikers are liable to be prosecuted.
   • (d) During the year 1950, there were certain occurrences in various Brazilian States which constituted specific violations of trade union rights, as, for example, the removal from office of several trade union leaders, the imprisonment of a number of other leaders, the searching of trade union premises, the suspension of the operations of a public employees' association, etc.
   • (e) By virtue of the legislation in force in Brazil (Labour Law of 1 May 1943), workers are prohibited from promoting an independent trade union movement ; the existing unions are governmental organisations. The Ministry of Labour exercises control over the drafting of their Constitutions, their internal functioning and their financial administration. In particular, the Ministry collects a trade union tax to support the official unions.
2. 40. By a cable dated 22 March 1952, also addressed to the United Nations, the World Federation of Trade Unions presented a second complaint protesting against a violation of trade union rights alleged to have been committed in connection with an aviation workers' strike.

B. Analysis of the Replies

• Analysis of the First Reply (3 December 1951)
  41. 41 In its first reply, dated 3 December 1951, the Brazilian Government presented, in particular, the following arguments:
      • (a) The Brazilian Confederation of Labour, which was declared illegal in 1947, never represented a majority of the trade unions.
      • (b) The sworn declaration as to " ideology " is no longer required.
      • (c) Strikes are considered to be anti-social acts only in so far as legal methods of settlement have not been exhausted.
      • (d) With regard to the allegations contained in point (d) of the complaint, the Government stated that it has asked the regional delegations of the Ministry of Labour for information.
      • (e) The Brazilian Government does not exercise control over internal trade union affairs. The unions are free to draw up their own Constitutions. There are, moreover, no " official " trade unions to which the trade union tax is allocated.
  42. Request for Supplementary Information
  42. 42 At its meeting on 10-12 January 1952 the Committee on Freedom of Association, noting the fact that the Brazilian Government had undertaken an enquiry into the allegations of infringements of trade union rights committed in various localities, decided to postpone its examination of the complaint pending the outcome of such enquiry and, at the same time, to request the Government to supply further information concerning the provisions governing the functioning of trade unions, the reasons for the dissolution of the Brazilian Confederation of Labour and the circumstances in which candidates in trade union elections in 1950 were required to make sworn declarations as to their ideology.
• Analysis of the Second Reply (30 May 1952)
  43. 43 In its second reply, dated 30 May 1952, the Government made a survey of the trade union régime at present in force in Brazil, giving details, in particular, as to the dissolution of the Brazilian Confederation of Labour in 1947 and as to the conditions governing the election of candidates for trade union office. With regard to the allegations relating to the aviation workers' strike, the Government referred to its reply of 3 December 1951 mentioned above.
• Allegation concerning the Dissolution of the Brazilian Confederation of Labour
  44. 44 In September 1946, a National Congress of Brazilian Workers was convened in order to discuss the question of constituting a National Trade Union Confederation. Two opposing tendencies manifested themselves at this Congress one, supported by the majority, in favour of the traditional trade union system ; the other, with a minority behind it, in favour of a single Confederation of a communist tinge.
  45. 45 Against the wishes of the majority, the Brazilian Confederation of Labour was constituted, outside the actual Congress, by the minority. Hence, the Confederation never represented, as the complainants assert, the majority of Brazilian workers. Placed under the control of the communist party, the Confederation embarked on illegal political activities and sought to seize by violence the leadership of the different trade unions. Furthermore, the Confederation was not legally approved as such in accordance with the provisions of the Labour Law ; it did not even seek to obtain such approval.
  46. 46 Because of the illegal nature of its activities and of its irregular status, the Government, by a Decree dated 7 May 1947, suspended the Confederation for a period of six months, at the same time calling upon the Attorney-General of the Republic to initiate before the competent tribunal, in accordance with Article 6 of Decree No. 9085 of 25 March 1946, proceedings to have the Confederation dissolved.
  47. 47 This dissolution was ordered by a judgment dated 14 July 1948 after the Federal Supreme Court, by a decision dated 29 October 1947, had rejected the request of the Confederation that the measure for its suspension taken by the Government should be declared to be illegal and contrary to the Constitution.
• Allegation concerning Trade Union Elections
  48. 48 With regard to the declaration as to political loyalty on the part of candidates for trade union office, the Government observed that this declaration is no longer required. In fact, an Order of 8 April 1952 amended the provisions concerning trade union elections. Under the terms of the Order candidates must simply declare that they are not ineligible for any of the reasons laid down in the Labour Law ; on the other hand, those concerned have the right to challenge the eligibility of a candidate. In the Government's view, this system is in complete harmony with the provision in the Constitution guaranteeing freedom of association.
• Allegations relating to the Legislation concerning Trade Unions
  49. 49 The régime governing trade unions is based on Article 159 of the Federal Constitution of 1946, which reads as follows:
• There shall be freedom to form occupational or trade union associations and the law shall provide rules for their Constitution, their lawful power of representation in collective labour agreements and their power to exercise functions delegated by the public authorities.
  50. 50 In the opinion of the Government, the legal provisions respecting trade unions in the Labour Law of 1 May 1943 are in conformity with the Constitution and could not, therefore, be deemed to be contrary to the principles of freedom of association. In this connection, the Government points out that the legislature has, on the one hand, regulated the form of trade union Constitutions and, on the other hand, has delegated to the unions certain powers, in particular the power to conclude collective agreements laying down binding rules and the power to levy a trade union tax. In return for these delegated powers, trade unions are subject to certain obligations in connection especially with their registration and recognition. In the view of the Government, the enjoyment of unlimited freedom might endanger the very basis of the democratic régime as laid down by the Constitution. The Government argues that this system has been justified by results, as is demonstrated by the large number of trade unions in existence, a number which is still continuously increasing.

C. C. The Committee's conclusions

1. 51. The Brazilian Government has ratified the Right to Organise and Collective Bargaining Convention (No. 98) but not the Freedom of Association and Protection of the Right to Organise Convention (No 87).
   • Allegation concerning the Dissolution of the Brazilian Confederation of Labour
2. 52. The complainants allege that the Brazilian Confederation of Labour was declared illegal although it represented a majority of the trade unions. In its reply dated 3 December 1951, the Brazilian Government maintains that this Confederation never represented a majority of the trade unions. In its communication dated 30 May 1952, the Government gives details concerning the circumstances under which the Brazilian Confederation of Labour was dissolved and annexes thereto a copy of a decision of the Federal Supreme Court dated 29 October 1947 and a copy of the judgment of the ordinary court which, on 14 January 1948, pronounced the dissolution of that organisation.
3. 53. It appears from this documentation that the dissolution procedure passed through two successive phases.
4. 54. First, on the same day as that on which the Communist Party was declared illegal and, accordingly, dissolved, the Government, emphasising the close ties between the Party and the Brazilian Confederation of Labour, suspended the latter for a period of six months (Decree No. 23046, D.O. No. 103, 7 May 1947, p. 6253).
5. 55. In taking this step the Government based its action on Legislative Decree No. 9045 of 25 March 1946 governing the registration of common law associations. In fact, the Brazilian Confederation of Labour never was an approved " Confederation " within the meaning of the Labour Law. It had simply been entered as a civil law society in the register of corporations. By virtue of the Legislative Decree of 1946, the Government is authorised to suspend for a period not exceeding six months any association that pursues activities which are unlawful or contrary to the security of the State or to the public and social order. The actual dissolution of such an association, however, is a matter which falls within the competence of the courts, to which an application therefor must be made by the Attorney-General.
6. 56. The order for suspension was based essentially on the two following grounds. First, the Confederation was composed of organisations and delegations which were not registered in accordance with the requirements of the Labour Law. Contrary to the legal provisions, the Confederation thus carried out activities in defence of occupational interests which are reserved exclusively to approved trade union organisations. Secondly, in addition to this unlawful activity, the Confederation engaged in political action which is prohibited even in the case of approved trade union organisations.
7. 57. Hence, the Government suspended the Brazilian Confederation of Labour for a period of six months. At the same time, it instructed the Attorney-General's Office to make application to the competent court for the dissolution of the organisation.
8. 58. In the second phase, the dissolution procedure was initiated by the Attorney-General in the competent ordinary court.
9. 59. During these proceedings, the Confederation contested the legality of the suspension measure taken by the Government and, at the same time, demanded that the case should be referred to the Federal Supreme Court with a view to obtaining a " security guarantee " declaring the Government's decision to be contrary to the Constitution. By a judgment dated 29 October 1947 the Supreme Court rejected this application. A majority of the judges considered, in fact, that the suspension measure was perfectly lawful. In their view, the Constitution, while guaranteeing freedom of association, leaves it to the legislature to determine the form under which trade union organisations may be established and function. The Confederation, not having complied with the formalities required by this Law, was therefore not legally constituted and so could not claim the right to be protected against a measure suspending it.
10. 60. But a minority of the judges considered that the Constitution authorises no restriction of freedom of association, that the case in question was not one of formal regulation and, consequently, that the guarantee order should be granted to the applicant.
11. 61. This point having been settled, the Court, by a decision dated 14 July 1948, declared the dissolution of the Brazilian Confederation of Labour.
12. 62. It appears from the text of the judgment which the Government annexes to its reply that the Court based its decision essentially on the following grounds. First, the Brazilian Confederation of Labour did not obtain the approval required by the Labour Law-a law which has not been abrogated by Article 159 of the Constitution. Secondly, the Brazilian Confederation of Labour, having as its principal object the propagation of doctrines incompatible with the Constitutional institutions of Brazil and the carrying on of activities of a political nature, did not fulfil the required conditions to enable it to be approved under the provisions of the Labour Law. Thirdly, the Communist Party having been prohibited, the Confederation also became illegal.
13. 63. It appears from the explanation given by the Government that the suspension of the Brazilian Confederation of Labour by administrative action constituted only the first step in the judicial dissolution procedure. The Government emphasises that this procedure offers all the guarantees of law to those concerned.
14. 64. Considering that it is a generally accepted principle that the suspension or dissolution of an employers' or workers' organisation should be pronounced only by the courts, the Committee, while observing that dissolution was pronounced ultimately by the competent court in the present case, recommends the Governing Body to draw the Government's attention to the fact that, where suspension measures are issued by administrative authority, there may be a danger that they will appear to be arbitrary, even though they are issued only temporarily or for a limited time and as a preliminary to subsequent court action.
    • Allegations concerning Trade Union Elections
15. 65. The complainants allege that trade union elections were prohibited in 1943 and that, when they were authorised in 1950, the Government forced the candidates to make a declaration of political loyalty. In its reply dated 3 December 1951, the Government makes no allusion to the prohibition of trade union elections in 1943 but states that the declaration as to political loyalty prescribed by Article 530 of the Labour Law has no longer been required since the entry into force of an Order of 8 April 1952, a copy of which is annexed to its reply.
16. 66. It appears from the explanations given by the Government that applying Article 530 of the Labour Law, the Government, in its " instructions " for the 1950 elections, did actually ask the candidates for a trade union executive post for a certificate delivered by the police affirming that they did not profess ideologies incompatible with the institutions or interests of the nation. But the Government adds that, by virtue of the Order of 8 April 1952, such certificates are no longer required. Henceforth, candidates for elective posts simply have to declare that they are not ineligible for any of the reasons contained in the law.
17. 67. It would seem from the details given by the Government that the twofold allegation of the complainants (the prohibition of union elections in 1943 and the obligation to present a certificate of political loyalty) has become purposeless since the coming into force of the Order of 8 April 1952. Consequently, the Committee feels that it is not called upon to express any view on the question of principle involved in cases in which declarations as to loyalty may be prescribed.
    • Allegation concerning the Right to Strike
18. 68. The complainants allege that strikes are considered to be anti-social acts and that all strikers are liable to prosecution before the courts. To this allegation should be added another, dated 27 March 1952, whereby the complainants protest against the violation of trade union rights on the occasion of an aviation workers' strike.
19. 69. In its reply dated 3 December 1951, the Brazilian Government points out that a strike is not regarded as an anti-social act except in a case in which it is called before the legal means provided for the settlement of labour disputes have been exhausted. In its communication dated 30 May 1952, the Government refers expressly to this earlier statement in connection with the aviation workers' strike.
20. 70. In support of their allegation the complainants make reference to Decree No. 970 of 15 March 1946, which therefore requires to be considered.
21. 71. Under the regulations in question, collective labour disputes are compulsorily submitted to preliminary conciliation procedure or to the labour court. Collective cessation of work is authorised only within the limits prescribed by the law. It is regarded as a serious misdemeanour if a strike occurs in economic branches designated as " essential occupations " by the legislature, that is to say, in public utility services such as water, gas, electricity, hospitals, etc. The definition also includes transport and communications-including therefore air transport-banks, agriculture, schools, etc. The Ministry of Labour may issue Orders to add further occupations to the list. All occupations not classified as essential occupations are deemed to be " accessory occupations ". In the latter occupations strikes are authorised in principle but become unlawful if the employees cease work " without proper regard to the conciliation and court procedure prescribed " by law.
22. 72. It appears from the text of the Decree of 15 March 1946 that not all strikes are deemed to be " anti-social " acts. Strikes are illegal if they occur in any of the occupations regarded by the legislature as vital to the national economy. Further, a strike may also become illegal if it is called in a manner which contravenes the provisions concerning the settlement of labour disputes, that is if the prescribed time limits are not observed or if there is failure to comply with decisions of the labour courts (Articles 723-724 of the Labour Law). It is in fact to the labour judiciary that Article 123 of the Constitution entrusts the task of settling individual and collective disputes between employees and employers.
23. 73. It should be added that the right to strike is recognised by Article 158 of the Constitution, with the provision that its exercise shall be regulated by law.
24. 74. It appears from this analysis that strikes are prohibited only in occupations which the Government designates as " essential ", but that, in accessory occupations, strikes are authorised within the limits prescribed by voluntary conciliation and arbitration procedures.
25. 75. In these circumstances, the Committee considers that the allegation that " all strikes are declared to be anti-social acts and legal prosecution is applied to all strikers " is not well founded, but recommends the Governing Body to draw the attention of the Government to the importance which it attaches, in cases in which strikes are prohibited in essential occupations, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending occupational interests.
    • Allegations concerning Certain Specific Cases of Infringement of Freedom of Association
26. 76. Finally, the complainants list a number of cases of infringements of freedom of association alleged to have taken place in several regions of the country during the year 1950.
27. 77. In its reply dated 3 December 1951, the Government stated that it had asked the competent regional authorities for information, but in its second communication makes no reference to the results of these enquiries. On the other hand, the Government has supplied the Committee with data concerning the trade union régime in general and the application of the laws, annexing thereto the texts of important judgments and those of certain authoritative legal opinions. It is made clear that the Government is fully aware of the need to guarantee freedom of association to the workers in all the regions of the country. On many occasions it emphasises that the workers enjoy this freedom fully provided that, in exercising their rights, they observe the requirements of the law. " In Brazil ", states the Government, " trade unions are free to engage in any lawful action in defence of the interests of the workers. They enjoy full freedom of action provided that they do not threaten public order or the rights and freedoms of other persons."
28. 78. In view of the general explanations furnished by the Government, the Committee considers that it is not necessary to ask it for further information, but recommends the Governing Body to draw the attention of the Government to the need for ensuring that the principles of freedom of association are applied throughout the whole country by all the authorities and administrations under its control.
    • Allegations relating to the Legislation concerning Trade Unions
29. 79. The complainants allege, in the first place, that under the provisions of the legislation concerning trade unions the promotion of the establishment of an independent trade union movement is prohibited, and that, also, existing organisations are under the control of the Government.
30. 80. In support of this allegation, the complainants refer to the Legislative Decree of 1 May 1943 to approve the consolidation of labour laws. In order to examine these two grounds of complaint, it is necessary to make reference to this text.
    • Allegations relating to the Restriction of the Workers' Right to Form Trade Unions.
31. 81. Part V of the Legislative Decree of 1 May 1943, which relates to the régime governing trade unions, provides for the establishment of two clearly distinct kinds of trade union organisations : (1) registered industrial associations, and (2) approved trade unions.
32. 82. Registered industrial associations. Under the terms of Article 511, associations for the purpose of the study, protection and co-ordination of the economic or occupational interests of all persons who are engaged as employees in the same activity or occupation or in similar or allied activities or occupations are lawful.
33. 83. Every industrial association is bound to have itself registered. Registration with the competent labour authorities takes place following the filing of a request therefor, accompanied by an authenticated copy of the rules and a statement indicating the number of members, the value of the property of the association and the social services set up and maintained. Registration confers on the industrial association the rights enumerated in the Law : it may represent before the administrative and judicial authorities the individual interests of its members in connection with the activity or occupation carried on by them ; it may co-operate with the State as a technical and advisory body in the investigation and solution of problems relating to the category of persons for whom it has been established ; it may also set up employment exchanges (Article 558).
34. 84. Approved trade unions. However, registration alone is not enough to enable an industrial association to become a " trade union " within the meaning of the Law. It becomes a trade union only when it is approved as such by the competent authorities, and this confers upon it the rights and obligations reserved to trade unions (Articles 512 and 561).
35. 85. In order to understand the difference drawn by the legislator between the industrial association which is simply registered and the approved trade union, it is necessary to examine, in the light of the legal provisions, first, the conditions under which an industrial association may be approved as a trade union, and secondly the rights and obligations of approved trade unions.
36. 86. The industrial association, in order that it may be approved as a trade union, must have as members at least one-third of the persons constituting the category for which it is established. These categories are defined by the Ministry of Labour on the proposals of an Industrial Association Membership Board, which includes, in addition to representatives of the public services concerned, two workers' and two employers' representatives appointed from lists presented by their respective national Confederations. As an exceptional measure, the Ministry of Labour may approve an association with a lesser membership.
37. 87. In order to be approved, the industrial association must be, in the view of the Minister of Labour, the most representative. He bases his view on, among other things, the number of members, the social services set up and maintained and the value of the property of the association. However, not more than one industrial association shall be approved as representative of each economic or occupational category in any given area.
38. 88. The Ministry of Labour fixes the area for each industrial association. Associations may be district, municipal, inter-municipal, State or inter-State ; by way of exception, national associations may be recognised.
39. 89. An approved trade union must comply with the following provisions:
    • (a) it shall not engage in any propaganda in favour of doctrines incompatible with the institutions and interests of the nation or in favour of candidates for elective offices not connected with the union ;
    • (b) an elective office shall not be held simultaneously with an employment for remuneration paid by the union ;
    • (c) the elective offices shall be honorary ;
    • (d) all activities shall be prohibited which are not included in the objects referred to in the Law (Article 511), including activities in favour of any political party ;
    • (e) it shall be prohibited from handing over its premises to any agency of the nature of a political party.
40. 90. In addition to the rights accorded to industrial associations mentioned above, the approved trade union has the following prerogatives:
    • (a) to represent before the public authorities the general interests of the category in question ;
    • (b) to enter into collective agreements ;
    • (c) to appoint representatives of the category in question ;
    • (d) to levy contributions on all persons engaged in the economic or occupational category in question.
41. 91. It has, on the other hand, the following obligations:
    • (a) to co-operate with the public authorities in the furtherance of social solidarity ;
    • (b) to maintain legal aid services for its members;
    • (c) to promote conciliation in labour disputes ;
    • (d) to promote the establishment of co-operative societies;
    • (e) to set up and maintain elementary and vocational schools.
42. 92. It would appear from these provisions that workers have in principle the right to establish organisations of their own choosing without previous authorisation. However, the legislation does not place on the same basis the two kinds of organisation : industrial association and approved trade union. The first is formed freely subject only to registration, which seems to ensue as of right if the legal conditions-of a purely formal kind-are fulfilled. The second is the industrial association officially approved as a trade union by the Government. Whereas an organisation of the first kind is entitled only to defend the individual interests of its members, the approved union is endowed with the power to represent and defend the collective interests of all the workers belonging to the category in respect of which the union is established, whether they are members of the union or not.
43. 93. It would seem from the above that no organisation is obliged to obtain approval. It is free to ask for it or to refrain ; if it makes no such request this will not render it illegal ; it will not benefit from the advantages conferred by the Law, but neither will it have to assume the obligations which the Law prescribes.
44. 94. Under these circumstances, approval cannot be assimilated to previous authorisation, because it applies to existing, freely established organisations which, in exchange for the advantages thereby conferred, freely submit to the conditions of form and substance which the Law prescribes when approval is obtained.
45. 95. It may, however, be asked whether, simply because the approved unions enjoy, to the exclusion of other organisations, privileges of paramount importance in the defence of occupational interests, wage earners are not indirectly obliged to belong to the approved unions. It does happen that the legislature in other countries without any intention of discrimination confers on recognised unions, which are in fact the most representative, certain privileges in connection with the defence of occupational interests which only they are in a position to perform effectively. But the granting of such privileges may not be made subject to conditions of such a nature as to bring into question through their operation the fundamental guarantees of freedom of association.
46. 96. It must therefore be considered whether, in the case under review, the conditions attached to the grant of approval do not indirectly bring into question the workers' right to establish and joint organisations of their own choosing.
    • Conditions attached to the Approval of the Trade Union
47. 97. The industrial association, in order to be approved, must have as members, as indicated earlier, at least one-third of the workers in the category concerned. In addition to the minimum membership requirement, the social services set up by the organisation and the value of its property are the essential elements which the Government must take into consideration. Finally, the Law expressly provides that the competent authority shall always approve the most representative association.
48. 98. It may be added that the Industrial Association Membership Board provided for in Article 576 of the Law is called upon "to settle all doubts and disputes relating to industrial association organisation ". The composition of this body would seem to ensure that cases are examined objectively. In fact, under the chairmanship of the Director-General of the Labour Department, the Board comprises the following persons : one representative of the National Institute of Technology, one representative of the Actuarial Service, one representative of the Statistics Service, one representative of the National Department of Industry and Commerce and one representative of the Industrial Associations Organisation and Assistance Division of the National Labour Department appointed by the Minister of Labour, one representative of the Ministry of Agriculture and two employers' representatives and two employees' representatives appointed from lists presented by their respective national Confederations.
49. 99. It appears from the foregoing that the decision as to approval is based on a number of objective criteria which would seem to exclude any arbitrary intervention on the part of the authorities.
    • Conditions relating to Trade Union Objects
50. 100. Article 518 of the Law provides that the rules of approved trade union associations must contain a statement that " the association will act as a body for co-operation with the public authorities and other associations for the furtherance of social solidarity and the subordination of economic and occupational interests to the national interests ".
51. 101. Such a provision, of course, is capable of various interpretations. Interpreted in a liberal sense, it may be understood as merely obliging the trade union to respect existing public order. Interpreted restrictively, however, it might imply some degree of subordination of the trade unions to the Government's economic and social policy. This would seem to have been the intention of the authors of the Law as the original text of Article 555, paragraph (c), provided for the withdrawal of approval where a union did not obey the instructions of the competent " corporative authorities " or comply with the guiding principles of economic policy issued by the President of the Republic, or where it prevented the carrying out thereof. However, by a Legislative Decree dated 11 October, this provision was replaced by a new text according to which approval will be withdrawn where a union " places obstacles in the way of the carrying out of the economic policy adopted by the Government ". This new provision no longer requires the unions to make their policy comply absolutely with that of the Government as it provides for the withdrawal of approval only if unions directly place obstacles in the way of the carrying out of State economic policy. It may be, therefore, that the legislator, in adopting this formula, intended it to apply only to acts unlawful at common law, as for example acts of sabotage, etc.
52. 102. In these circumstances, the Committee considers that the complainants have not proved that this provision is applied in such a way as to infringe the right which employers' and workers' organisations should enjoy to draw up their programmes in full freedom. However, the Committee wishes to emphasise that because it is imprecise such a formula might imply some restriction of the freedom of action of the trade unions in the field of industrial relations, as trade union policy may not exactly correspond with Government policy, although that does not mean that it interferes with public order.
    • Allegations concerning Infringements of Trade Union Autonomy
53. 103. In support of the complaint that the functioning of trade unions is controlled by the Ministry of Labour, the complainants make the three following allegations:
    • (a) the Law regulates internal trade union affairs so strictly that they cannot freely draw up their own rules ;
    • (b) trade union problems may be discussed only at union headquarters and with the consent of the Ministry, which has the right to prohibit meetings and, where it authorises them, to intervene with regard to the placing of items on the agenda ;
    • (c) the Ministry of Labour also exercises control over trade union finances and collects an annual tax equal to one day's pay to support the official trade unions.
54. 104. A survey will be made of the provisions in the Law relating to these respective points but it may be observed at the outset that all of them apply solely to approved trade unions and not to industrial associations which are simply registered.
    • Provisions relating to Trade Union Rules
55. 105. Paragraph 1 of Article 518 provides that trade union rules must contain, apart from the statement as to the objects of the union analysed earlier (see paragraph 100 above), the following particulars:
    • (a) the style and address of the association ;
    • (b) the economic or occupational category which is to be represented;
    • (c).................................................................................................................................................
    • (d) the powers and duties of the executive officers, the method of electing them and the rules for voting, and the grounds on which they may be removed from office or replaced ;
    • (e) the method of accumulating and managing the property of the association and the purpose for which such property is to be used if the association is wound up ;
    • (f) the conditions for the winding up of the association.
56. 106. These provisions relate to matters which are generally regulated by all trade union rules, with the sole object, it would appear, of ensuring the normal functioning of the organisation.
57. 107. It should be added, however, that by a decision of 22 August 1940 (Diario Oficial of 23 August 1940) the Ministry of Labour published a model set of rules ; but it is perfectly clear from the introductory paragraph of this decision that, yielding to the repeated requests of the parties concerned, the Minister confines himself to recommending the adoption, mutatis mutandis, of the model text. The provisions of this Ministerial Order, therefore, are in no way compulsorily binding.
58. 108. The Committee considers therefore that the complainants have furnished sufficient proof in support of the allegation that trade unions cannot draw up their own rules.
    • Provisions concerning Internal Trade Union Organisation
59. 109. The complainants allege that the Ministry of Labour exercises strict control over internal trade union affairs ; that it may prohibit meetings and intervene in connection with the placing of items on the agenda. The Law contains no special provisions on this point but Article 525 contains the following general rule:
    • Persons who are not members of an industrial association shall not take part in any manner whatsoever in the management or services of the association.
    • This prohibition shall not apply to the following persons:
      • (a) delegates of the Ministry of Labour, Industry and Commerce specially appointed by the Minister or his representative....
    • 110. The Brazilian Government, in its reply, states that no control is exercised over internal trade union affairs.
60. 111. The statement certainly, does not show that the above-mentioned provision in the Law has been repealed, but it would appear that in practice the provision has lapsed. Therefore, in the absence of any details furnished by the complainants, the Committee considers that sufficient proof has not been offered to support the allegation that the Government intervenes in the internal affairs of trade unions to the prejudice of their rights.
    • Provisions concerning Trade Union Finances
61. 112. Assets. The complainants allege that the Government exercises control over trade union finances and collects an annual tax to support the official unions.
62. 113. Under the Labour Law, trade union assets consist mainly in the following : contributions of the members as fixed by the rules and contributions payable by workers belonging to the economic or occupational category represented by the union " under the heading of industrial association tax " (Article 548).
63. 114. Regulations concerning this industrial association tax form the subject of Chapter III of Part V of the Labour Code. The principal provisions may be summarised as follows.
64. 115. The industrial association tax is levied in favour of the approved unions. Associations which are registered but not approved do not benefit from it. It is payable by all workers, whether union members or not. It is paid annually as a single lump sum and, in the case of employees, consists of an amount equal to one day's remuneration (Article 580 (a)) deducted from their pay by the employer (Article 582) and deposited in the Bank of Brazil (Article 586).
65. 116. The Bank of Brazil must open a special account for each of the approved trade union organisations and forward annually to the National Labour Department an extract from the accounts. Each organisation may withdraw funds by cheques signed by its treasurer and countersigned by its president (Article 588).
66. 117. A deduction of 20 per cent for the benefit of the approved federations and Confederations is made annually from the amount collected by way of industrial association tax, 15 per cent being allotted to the federation and 5 per cent to the Confederation concerned. A further 20 per cent is transferred to the "Industrial Associations Social Fund" (Articles 589-590), which is administered by a joint committee and utilised for purposes calculated to promote the general interests of the national industrial association system (Articles 592-594).
67. 118. The remainder of the industrial association tax must be utilised by the approved trade unions for purposes defined by the Law, such as the maintenance of employment agencies, social assistance, vocational training, etc. Within these limits, the utilisation of the tax is left to the discretion of each trade union, which will always have to consider the particular interests of the category of workers it represents.
68. 119. Financial administration. The property and income of industrial associations must not be utilised otherwise than in the manner prescribed by the Law and by the rules. Their securities and real property must not be transferred except with the authorisation of the Minister of Labour (Article 549). The annual estimates of receipts and expenditure must be approved by the Minister. The accounts must be approved by the competent organs of the Ministry. A report on the preceding financial year must be furnished each year to the Ministry (Articles 550-551). Contraventions render those guilty thereof liable not only to the administrative or penal sanctions prescribed in this connection by the Labour Law (Article 553) but also to special fines, if they relate to the industrial association tax, or to imprisonment, in the event of embezzlement or misappropriation, which are regarded as crimes against the wealth of the nation (Article 552).
69. 120. It appears from these various provisions that the approved unions not only derive their financial resources from members' contributions but also benefit, as legal representatives of all the workers, by a special tax levied by the State. Although the utilisation of moneys derived from this tax is limited to purposes laid down in the Law, it nevertheless appears that unions remain free to use the revenues accruing from voluntary contributions in accordance with their own rules. However, analysis of the Law reveals that the Government exercises some degree of control not only over a union's utilisation of money derived from the industrial association tax but also over union financial administration as a whole.
    • Provisions concerning Trade Union Federations and Confederations
70. 121. By Article 562 of the Labour Law, the expressions " federation " and " Confederation " are to be used exclusively by groupings of approved unions ; they are " industrial organisations of higher rank ". Federations require the approval of the Minister of Labour, and Confederations that of the President of the Republic (Article 537). If the President of the Republic considers it advisable in the interests of the organisation of industrial associations, he may order the Constitution of federations or Confederations (Article 536). Federations are formed for the different States constituting the Republic. The Minister of Labour, however, may also authorise inter-State or national federations ; by way of exception, regional or municipal organisations are authorised. Confederations are national and industrial. The Law provides for the establishment of seven Confederations in the case both of employers and of workers (Article 535). For the rest, the provisions relating to trade unions apply also to federations and Confederations.
71. 122. Under Article 565, approved industrial associations may not affiliate with or maintain relations with international organisations except with the previous consent of the National Congress. It should be remembered that the original version of the Law absolutely prohibited such affiliation. The present text of the provision was promulgated by a Legislative Decree of 23 July 1946. It is pursuant to this provision that Congress was called upon to authorise the organisations of the second and third degrees to affiliate with the International Confederation of Free Trade Unions.
72. 123. It appears from these provisions that the formation of federations and Confederations is the privilege of the approved unions. Like the latter, these bodies themselves require to be approved. Whereas the approval of federations is in the competence of the Minister of Labour, Confederations require the approval of the President of the Republic. Affiliation of trade union organisations with any international organisation is expressly subject to prior authorisation by Congress.
73. 124. It would appear, therefore, that the Law has given to the public authorities a considerable degree of control over the establishment of trade union organisations " of higher rank ".
74. 125. It appears from this analysis that the trade union régime is characterised by the co-existence of two kinds of workers' organisations : industrial associations which are simply registered, and those which are approved as trade unions. It is to the latter that the Law has reserved some of the functions normally performed by every industrial association. The Law has also conferred on them certain privileges, for example that of concluding collective agreements operating as binding regulations, that of representing all the workers belonging to the category for which the association is established, that of benefiting from an industrial association tax levied on all workers whether union members or not, and, finally, that of forming federations and Confederations.
75. 126. In its reply, the Government emphasises that these regulations have neither the object nor the consequence of muzzling the trade union movement, but on the contrary of promoting its development. " Directly aware of the needs of the workers ", the Government " has not only guaranteed them the freedom to strive in full dignity to defend their interests, but has taken the initiative by defending them in their trade union activities and granting them corresponding rights ". The Government also calls attention to the fact that the trade union movement has considerably developed since the promulgation of the Labour Law " The trade union movement ", it declares, " participating in the considerable development resulting from economic progress and the exploitation of the country's wealth, will create within two decades a society in which workers will play an important part...... "
76. 127. There has been occasion to observe in several instances that the trade union legislation which seems originally to have been conceived as a part of a régime of corporations-a régime now abandoned-has been the subject in the last few years of important amendments which have rendered appreciably more flexible the previous rigid wording of many provisions.
77. 128. Moreover, certain other provisions which still subsist in the Labour Law and which, read literally, might be interpreted as placing restrictions on freedom of association, now seem in practice to have fallen into disuse.
78. 129. Finally, the Constitutional guarantee of freedom of association cannot fail to exercise a very great influence on future developments in trade union legislation.
79. 130. In these circumstances, the Committee considers that the complainants have not furnished sufficient proof to support the allegation that the legislation in force prevents the development of an independent trade union movement.

The Committee's recommendations

1. 131. In conclusion, the Committee recommends the Governing Body:
   • (a) to note with satisfaction the Brazilian Government's ratification of the Right to Organise and Collective Bargaining Convention, 1949, and to draw the attention of the Government in particular to Articles 1 and 4 of that Convention, which prohibit any anti-union discrimination in respect of employment and provide for the full utilisation of machinery for negotiation ;
   • (b) to suggest to the Government that it should examine, in the light of the principles laid down in the Freedom of Association and Protection of the Right to Organise Convention, 1948, and with a view to considering the possibility of ratifying that Convention, its existing trade union legislation, especially with regard to:
   • (i) the distinction now drawn between associations which are simply registered and unions which are approved ;
   • (ii) the affiliation of employers' and workers' organisations with international organisations of employers and workers; and
   • (iii) certain other provisions concerning, especially, the objects of trade unions, their financial administration, and trade union federations and Confederations;
   • (c) to decide that, subject to the observations contained in paragraphs 64, 75 and 78 above, the case as a whole does not call for further examination.