Definitive Report - Report No 74, 1964

Case No 332 (Brazil) - Complaint date: 28-FEB-63 - Closed

1. 89. The complaint by the International Metalworkers' Federation (I.M.F.) is contained in a communication addressed directly to the I.L.O and dated 28 February 1963. Further information to substantiate it was sent on 2 May 1963.
2. 90. The original complaint and the further information were transmitted to the Government, for its observations, in letters from the Director-General dated 14 March and 15 May 1963. As some of the allegations made by the plaintiffs related to the arrest of trade unionists, the Director -General also informed the Government that this case belonged to the category of cases which the Committee and the Governing Body are required to examine with priority.
3. 91. The Government communicated its observations to the Office by two letters dated 25 and 29 October 1963.
4. 92. The Committee was seized of the case at its 35th Session (Geneva, 4-5 November 1963), but, since the Government's observations had reached it too late to be examined as regards the substance of the case, decided to defer consideration until the present session.
5. 93. Brazil has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), but not the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. A. The complainants' allegations

1. 94. I.M.F states that the events to which it intends to refer concern (a) members and leaders of the Jaù Metal Workers' Association, which the complainant declares is associated with the Sao Paulo State Federation of Metal Workers' Unions, and (b) members and leaders of this latter organisation, which is itself affiliated to the I.M.F. It alleges that the acts in question were infringements of Conventions Nos. 87 and 98.
2. 95. The complainant organisation then gives a detailed description of the events said to have occurred. It states that since February 1962 the Masiero Industrial Company S.A., having a staff of 186 metalworkers, all members of the Jaù Metal Workers' Association, had been paying wages with 10, 12 and even 25 days' delay, although the Labour Law stipulates that wages are payable within the first ten working days of each month.
3. 96. Having regard to the prejudice caused to the workers by this practice, the complaint goes on, Federation and local union representatives contacted company officials on several occasions, asking that the delayed payments be brought up to date; conciliatory conversations took place from March to October 1962 but yielded no results, while the employer continued to delay payment of wages, ignoring the union's and Federation's requests to regularise the payments.
4. 97. The complaint continues to the following effect: by 14 November 1962 the wages for October were still unpaid; the union, with the Federation's approval, convened a general meeting and, after discussing the facts, decided that if the company again delayed payment of wages a strike should be declared; the employer was informed and took note of this decision; the December wages were paid with only two days' delay; the company was also required by law to pay on 31 December the bonus for the " thirteenth month "; but the company gave promissory notice instead, due in 30 or 60 days, which was against the law.
5. 98. During the early days of January 1963, the complaint goes on the union and the Federation jointly contacted the employer in an effort to fix a specific day for the payment of wages. Although the employer had promised that no delay should occur in that particular month, wages were received only after 11 days' delay. In view of this action, the union called a general meeting for 11 February, and this was attended by Argeu Egydio dos Santos, Vice-President of the Federation. The 128 members present (all employed by the company) decided that there should be another interview with the employer to ascertain when he intended to effect payment of wages and that the general meeting should convene again the following day, 12 February, to inform the workers of his reply.
6. 99. Immediately after the meeting, Argeu dos Santos and Gavino Ferrari (president of the local branch of the union) contacted the employer, who told them that, if the banks discounted the company's drafts, wages would be paid before 16 February; if not, the workers "would have to be patient".
7. 100. On 12 February, as arranged, the workers met again and the employer's answer was transmitted; the workers, angry at his conduct, resolved to strike, considering that this would be the only way of forcing the employer to arrange for wages to be paid in time. The strike was to start at zero hours on 13 February.
8. 101. Shortly after the above meeting, the decision to strike was announced from the local radio station several times during a six-hour period.
9. 102. The decision to strike having been taken, several groups of workers formed picket lines and moved towards the factory, where-the complainant states-they met a considerable force of police, civilian and military, under the orders of the Sao Paulo state government. There was no violence during the early hours of the strike, which was peaceful and complete. However, on 13 February about mid-day, while Messrs. Argeu dos Santos and Gavino Ferrari were talking with a group of workers in a street near the factory, they were arrested by the police without explanation and the other workers were ordered to disperse.
10. 103. As soon as the state Federation knew of these events, three officials were sent to Jaù, accompanied by a lawyer, to take the appropriate steps. The workers, revolted at the police action, decided at a meeting not to reach any agreement with the employer as long as their union officials remained in gaol.
11. 104. The workers and their leaders then decided to take legal action in order to free the arrested officials. Through its legal department the Federation introduced a plea of habeas corpus for Argeu dos Santos and Gavino Ferrari before the local court at Jaù. Twenty-four hours later the district judge studied this plea and rejected it. The complainants state that " this decision aggravated the situation even further, as the judge had no right, in the absence of a crime, to deny the request of habeas corpus ".
12. 105. Having regard to the foregoing, its officials having been in gaol for eight days, the state Federation introduced another plea of habeas corpus, before the state court at Sao Paulo. On 20 February a judicial panel composed of ten magistrates sat to review the case and unanimously decided to release Argeu dos Santos and Gavino Ferrari; it also ordered all criminal proceedings to be discontinued, arguing that the arrests were illegal as the trade union office officials had acted to secure payment of wages which were due, that it was the duty of labour leaders to inform and guide their members, and that such action was no crime whatsoever.
13. 106. At the same time, administrative meetings (round table sessions with the Sao Paulo delegation of the Ministry of Labour) were held in an effort to settle the dispute itself. In one of these conversations Dr. Roberto Gusmao, the official representative of the Ministry of Labour, confirmed that the strike was lawful because the workers were fully entitled to claim their due wages. This statement by the Ministry's representative was published in the local Sao Paulo newspaper Ultima Hora and other newspapers.
14. 107. After the release of the two imprisoned leaders, which occurred on 20 February at 11.30 p.m., the workers met and unanimously decided to continue the strike until the dispute had been finally settled. Subsequently it was decided to present the workers' case before the labour court in order to obtain a decision at that level.
15. 108. On 22 February, the complainant states, the labour court decided that the delay in paying wages was a breach of contract and that the workers should submit individual claims to the local court at Jaù which would then determine their rights and any compensation due to them.
16. 109. It was against this background, the complainant concludes, that the breach of contract was collectively attacked before the court at Jaù, and that the workers at a general meeting unanimously decided to terminate the strike.
17. 110. The Government's reply and 29 October 1963. In the first of these the Government merely confirms that, having been arrested and kept in custody by the judge at Jab despite the plea of habeas corpus, the two trade unionists mentioned by the complainant were released by order of the state court. In its second communication, referring to the complainant's allusion to a breach of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Government holds the view that, as Convention No. 87 has not been ratified by Brazil, any complaint thereon is non-receivable.
18. 111. This last statement by the Government calls first of all for an observation on the part of the Committee. While recognising that Brazil has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Committee considers it appropriate to point out, nevertheless, as it has done in relation to Case No. 211 (Canada), Case No. 191 (Sudan), Case No. 266 (Portugal), Case No. 303 (Ghana) and other previous cases that the Declaration of Philadelphia is now an integral part of the Constitution of the International Labour Organisation; that the objects set forth therein are included among those which the International Labour Organisation was established to promote, according to article 1 of the Constitution, as amended at Montreal in 1946; and that the Declaration:
    • ... recognises the solemn obligation of the International Labour Organisation to further among the nations of the world programmes which will achieve... the effective recognition of the right of collective bargaining, the co-operation of management and labour in the continuous improvement of productive efficiency, and the collaboration of workers and employers in the preparation and application of social and economic measures.
    • In these circumstances the Committee considers, as it did previously when examining the cases mentioned above, that it should,
    • ... in discharging the responsibility to promote these principles which has been entrusted to it, be guided in its task, among other things, by the provisions relating thereto approved by the Conference and embodied in the Freedom of Association and Protection of the Right to Organise Convention (No. 87), 1948.... which afford a standard of comparison when examining particular allegations, more particularly as Members of the Organisation have an obligation under article 19 (5) (e) of the Constitution to report to the Director-General of the International Labour Office, at appropriate intervals as requested by the Governing Body, the position of its law and practice in regard to the matters dealt with in unratified Conventions, showing the extent to which effect has been given, or is proposed to be given, to any of the provisions of the Convention by legislation, administrative action, collective agreement or otherwise and stating the difficulties which prevent or delay the ratification of such Conventions.
    • Having regard to the above, and while noting that the Government of Brazil is one of those which have complied with the said obligation (at the request of the Governing Body) as regards the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and recognising that Brazil is not bound by the provisions of that Convention, the Committee considers that its non-ratification is not a sufficient reason to cause the Committee to refrain from examining the substance of allegations based wholly or partly on the provisions of that instrument or principles proceeding from it.
19. 112. It appears both from the statements of the complaint and from the Government's observations that the two trade unionists mentioned by I.M.F as having been arrested were subsequently released and that all legal proceedings against them were dropped. In these circumstances the Committee, considering that the complaint had become purposeless, might have recommended the Governing Body to decide not to examine it further.
20. 113. Nevertheless, if it be assumed that the complainant's allegations are accurate -and, far from being denied, they are largely corroborated by the Government the union officials Argeu dos Santos and Gavino Ferrari, while engaged on trade union work, were arrested by order of the Jaù police, placed in cells intended for criminals and considered as such, they were accused of infringement of the " right to work " under section 197 of the Penal Code (" coercion by violence or intimidation ") and under section 200 (" action with intent to cause a stoppage of work or collective desertion and violence against persons or property "); and only after eight days' detention in the condition summarised above were all charges against them withdrawn and themselves released, the plea of habeas corpus entered in their favour having been granted on appeal.

B. B. The Committee's conclusions

1. 114. In several previous cases, the Committee has pointed out that the detention of trade unionists concerning whom no grounds for conviction are subsequently found is liable to involve restrictions of trade union rights. In these same cases the Committee has recommended the Governing Body to ask the government to consider whether the authorities concerned had instructions appropriate to eliminate the danger of detention for trade union activities.
2. 115. In the present case the Committee recommends the Governing Body, while taking note of the release of the persons concerned, to draw the attention of the Government to the view expressed in the previous paragraph.
3. 116. As regards the dispute itself, the Committee, noting that the labour court considered that there was breach of contract and that the case was brought before the ordinary courts to determine the workers' rights and any compensation due to them, considers that there is no ground for it to pursue further its examination of this aspect of the case.

The Committee's recommendations

1. 117. With regard to the case as a whole, the Committee recommends the Governing Body, while taking note of the release of Messrs. Argeu Egydio dos Santos and Gavino Ferrari, to point out to the Government that the detention by the authorities of trade unionists concerning whom no grounds for conviction are subsequently found is liable to involve restrictions of trade union rights, and to ask the Government to ensure that the authorities concerned have instructions appropriate to eliminate the danger of such detention for trade union activities.