Report in which the committee requests to be kept informed of development - Report No 236, November 1984

Case No 1225 (Brazil) - Complaint date: 04-AUG-83 - Closed

1. 303. The Committee examined this case at its February 1984 meeting, when it submitted an interim report which was approved by the Governing Body at its 225th Session, February-March 1984. [See 233rd Report, paras. 659 to 671.] The Government subsequently sent certain information in a communication dated 21 May 1984.
2. 304. Brazil has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 305. The complaint of the international Confederation of Free Trade Unions concerns several labour disputes which broke out in July 1983 in oil refineries at Campinas and Bahia and in metallurgy at Sao Bernardo do Campo, where strikes organised so as to obtain better social and economic conditions were punished by the dismissal of strikers and the placing of the unions under supervision. The complainant further stated that the aggravation of the situation due to the economic policy of the Government led to a general strike on 21 July 1983. The Minister of Labour retaliated by placing under the supervision of the federal authorities the unions of bank employees and metropolitan transport employees of Sao Paulo.
2. 306. In its earlier reply, the Government did not refute the allegations but explained that under Legislative Decree No. 1632 of 4 August 1978 the oil, banking and metropolitan transport sectors were considered to be essential services in which strikes were prohibited and strikers could be dismissed and trade union leaders removed from office. It also stated that the strike in the metallurgical industries had been called in violation of Act No. 4330/64 and recently adopted standard-setting instruments.
3. 307. In February 1984 the Committee pointed out to the Government that strike action was one of the essential means available to workers and their organisations for defending and promoting their occupational interests and that the essential services in which strikes could be prohibited should be understood in the strict sense of the term, that is to say services whose interruption might endanger the life, personal safety or health of the whole or part of the population.
4. The Committee also pointed out that the prohibition of strikes in the oil, banking and metropolitan transport sectors provided for by Legislative Decree No. 1632 of 4 August 1978 was contrary to the principles of freedom of association. It therefore asked the Government to keep it informed of the measures taken to lift the supervision of the trade unions concerned and to re-establish the leaders in their functions and to reinstate in their jobs the trade union leaders and strikers who had been dismissed. The Committee also asked the Government to amend its legislation, particularly Legislative Decree No. 1632 of 4 August 1978, so as to restrict the list of essential services in which strikes could be prohibited to services which are essential in the strict sense of the term. Lastly, the Committee asked the Government to send the text of the provisions infringed by the strikers concerned in the strikes in the metallurgical, mechanical and electrical industries of Sao Bernardo.
5. B. The Government's reply
6. 308. In its communication of 21 May 1984, the Government states that the Ministry of Labour has ended the administrative supervision imposed on the Trade Union of Metallurgical, Mechanical and Electrical Workers of Sao Bernardo do Campo and Diadema, the Union of Workers of the Oil Distillation and Refining Industry of Paulinéa and Campinas, the Union of Workers of the Metropolitan Transport'' Undertaking of Sao Paulo and the Union of Workers of the Oil Distillation and Refining Industry of the State of Bahia. It also indicates that elections relating to these unions are under way. The Government further rejects the allegations to the effect that trade union leaders or workers have been dismissed for strike activities.
7. 309. With regard to the supervision of the Union of Employees of Bank Establishments of Sao Paulo, the Government states that the supervision has not been lifted because the competent authorities of the Ministry of Labour are auditing the accounts of this union.
8. 310. The Government also states that studies with a view to amending the trade union legislation, particularly in respect of the right to strike, including the Act No. 4330 of 1964 and Chapter VI of the Consolidated Labour Laws concerning collective agreements are being carried out. In conclusion, the Government states that the Ministry of Labour has submitted the text of a draft bill and its amendments to the trade union organisations and other sectors of society concerned so that it may be able to place before the National Congress a bill based on social consensus.

C. The Committee's conclusions

1. 311. The Committee notes with interest that the administrative supervision of the trade unions which are the subject of the complaint has been lifted, with the exception of that applying to the Union of Employees of Bank Establishments of Sao Paulo, in respect of which the competent authorities are carrying out an audit, and that, according to the Government, no one has been dismissed for strike activities. The Committee also notes that elections are under way for the unions where the supervision has been abolished. The Committee recalls that it had requested the Government to reinstate the trade union leaders in their posts. It accordingly requests the Government to ensure that the trade union leaders in question have the possibility of being re-elected to their posts.
2. 312. With regard to the auditing of the accounts of the Union of Employees of Bank Establishments of Sao Paulo, the Committee again points out, as it has done on many occasions in the past, that, although legislative provisions requiring submission to the authorities of annual financial statements and other data on points that may not seem clear in these statements do not in themselves infringe the financial autonomy of trade unions, measures of supervision over the administration of trade unions such as audits and inquiries should be applied only in exceptional cases when justified by grave circumstances (for example, presumed irregularities in the annual statement or complaints from members of the organisation) so as to avoid the danger of intervention by the authorities which might hinder the exercise of the right of unions to organise their administration in full freedom. [See, in particular, 83rd Report, Case No. 399 (Argentina), paras. 285 and 287.]
3. 313. In the present case, while the auditing of the accounts of the Union of Employees of Bank Establishments of Sao Paulo is being carried out this union has been placed under the supervision of the federal authorities because its leaders took part in the general strike of 21 July 1983. The Committee, therefore, considers that the audit of the union's accounts had wider implications. It accordingly urges the Government to ensure that this supervision is accompanied by certain guarantees against interference by the authorities, and in particular that the official appointed to carry out the supervision is himself subject to the control of the judicial authorities. The Committee hopes that the administrative supervision of this union will be brought to an end in the near future.
4. 314. The Committee notes with interest the assurances given by the Government concerning the amendment of the trade union laws, including the provisions on the right to strike. The Committee expresses the firm hope that these amendments will bring the legislation into conformity with the principles of freedom of association and asks the Government to keep it informed of any developments in this matter.

The Committee's recommendations

1. 315. In these circumstances, the Committee recommends the Governing Body to approve this report and, in particular, the following conclusions.
   • (a) The Committee notes with interest that the administrative supervision of four of the five trade unions forming the subject of the complaint has been lifted and that elections relating to these unions are under way. The Committee again requests the Government to ensure that the trade union leaders of the unions in question have the possibility of being re-elected in their posts.
   • b) The Committee urges the Government to ensure that the auditing of the accounts of the Union of Employees of Bank Establishments of Sao Paulo which is currently being carried out by the authorities while this union is still under administrative supervision, is completed as soon as possible and is accompanied a by certain guarantees and, in particular, that the official appointed to carry out the audit is himself subject to the control of the judicial authorities. The Committee would again express the hope that the administrative supervision of this union will be brought to an end in the near future.
   • (c) The Committee expresses the firm hope that the amendments to the trade union legislation, including provisions on the right to strike, that are under consideration by the Government, will bring this legislation into conformity with the principles of freedom of association. It wishes to remind the Government that the ILO remains at the disposal of all the parties concerned to provide them with any assistance that may contribute to the preparation of future legislation with a view to ensuring a situation that is in conformity with the standards and principles of the international Labour Organisation concerning freedom of association. The Committee asks the Government to keep it informed of any developments in this matter.