Report in which the committee requests to be kept informed of development - Report No 265, June 1989

Case No 1487 (Brazil) - Complaint date: 23-JAN-89 - Closed

1. 339. The International Confederation of Free Trade Unions (ICFTU) presented a complaint of violation of freedom of association in Brazil in a communication of 23 January 1989. The Government sent its observations in response to this complaint in communications of 3 and 17 April 1989.
2. 340. Brazil has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); on the other hand, it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 341. The ICFTU states that it is alarmed by the provisions of Brazil's new Constitution of 5 October 1988, which reproduce certain aspects of earlier trade union legislation which, according to the ICFTU, are incompatible with Convention No. 87.
2. 342. The ICFTU recognises that the new Constitution has introduced a number of provisions with a view to guaranteeing a greater freedom for trade unions vis-à-vis the State. However, it regrets that the new Constitution retains the two primary features of the corporatist structure of Brazilian trade unionism, namely, trade union monopoly and the trade union tax.
3. 343. In this connection, the constitutional text is inconsistent in providing that "there shall be no more than one trade union of any kind representing the same occupational or economic category of workers in a given territorial area", while at the same time prohibiting any kind of intervention by the authorities in the activities of trade unions, and abolishing the previous requirement for state authorisation for the creation of trade unions. Moreover, it specifies that the territorial area will be defined by the workers, but stipulates that it may not be smaller than a municipality.
4. 344. In addition, by providing that "the General Assembly shall set the level of contributions to be deducted from the pay of workers in a given occupational category for the financing of the confederational system, independently of the contribution required by law", the Constitution not only provides for contributions to be set by the General Assembly which will also finance federations and confederations (as opposed to the earlier practice where the contribution was primarily designed to help in the financing of trade unions), but maintains the trade union contribution required by law.
5. 345. The ICFTU concludes that the new Constitution abolishes previous trade union legislation, including provisions governing collective bargaining, the registration of trade union organisations and the maintenance of the compulsory trade union contribution.
6. 346. It also concludes that freedom to organise trade unions should be guaranteed, that an Act will identify the agencies responsible for the registration of trade union organisations, and that workers shall decide in the event of a duplication of trade union representation and as regards the definition of territorial areas for given trade union organisations, as provided for in the Constitution.
7. 347. Nevertheless, the ICFTU doubts that the foregoing will in fact take place in Brazil in the light of a number of events which have taken place since the new Constitution was promulgated. For example, it explains, on 6 October 1988 one of Brazil's trade union confederations, the Workers' Central Organisation (CUT), filed for registration and the recording of its by-laws with the Ministry of Labour. At the same time, it requested registration in the "Record of Titles and Documents". It was compelled to follow this double procedure in order to become established as a legal entity, in the absence of any competent agency to handle registrations.
8. 348. At the same time, the then Minister of Labour promulgated a Decree which contained interim provisions for the registration of new trade union organisations, establishing a procedure based on the new constitutional provisions which, without any doubt, tend to favour the legal existence of certain confederations.
9. 349. However, several days later, a new Minister of Labour convened almost all workers' and employers' confederations to discuss the distribution of 20 per cent of the trade union contribution, which had previously been allocated to the Ministry of Labour, and the question of competence for the registration of new trade union organisations.
10. 350. The ICFTU adds that immediately after this meeting, on 1 November 1988, the new Minister of Labour revoked his predecessor's Decree (Ministerial Decree No. 3280); several newspapers throughout the country reported that a "National Council of Trade Union Confederations" had been convened to discuss the above-mentioned questions concerning the registration of trade unions and the allocation of trade union contributions.
11. 351. These facts lead the ICFTU to believe that certain parties, with the consent and support of the Government, seek to promote a situation which will restrict freedom of association and foster conditions to ensure that future legislation will maintain certain aspects of the earlier law.
12. 352. The ICFTU adds that the gravity of the current situation is illustrated by the fact that one of the de facto confederations has not yet received any reply to its request for legal recognition. It therefore concludes that certain parties are promoting an irreversible situation which is incompatible with the principles of freedom of association and trade union autonomy.

B. The Government's reply

1. 353. In its first reply of 3 April 1989 the Government states that the country is taking its first tentative steps under the new Constitution, and is going through a period of transition as regards political, juridical and trade union relations. It adds that there is ongoing progress in the development of direct relations between employers' and workers' representatives, and that both groups sincerely wish to overcome any differences concerning the economic and social order.
2. 354. The Government states that within the context of this new framework of industrial relations, the Ministry of Labour acts simply as an arbitrator, and a mediator in debates concerning industrial relations.
3. 355. According to the Government, the social interlocutors have traditionally been the leaders of employers' and workers' confederations, and the managers of the national economy's most important sectors. The national confederations of workers have been invited to participate in these debates to ensure the authenticity of negotiations and to safeguard shared interests.
4. 356. The Government assures that the new legislation will regulate all aspects of political and trade union relations and industrial relations, in particular through widespread consultation with rank and file members, in keeping with certain principles contained in the Constitution, such as the confederational system, the pre-eminence of trade union monopoly in the same branch of economic activity, the specificity of representation of economic and occupational categories (by industry, commerce, services, etc.), and of the liberal professions, the management of the trade union contribution, as provided for in current legislation, for the maintenance of services and programmes relating to class organisation.
5. 357. According to the Government, the federal Constitution enshrines the principles of freedom of association and trade union autonomy as central features of the new trade union order, and confers upon trade union leaders complete responsibility for their own fate, whether in the area of political or class action, or in that of internal management, including financial management. The Constitution guarantees that the authorities will not interfere or intervene in the organisation or dissolution of trade unions (other than by means of judicial decisions), the freedom of workers to join trade unions, or by requiring state authorisation for the establishment of new trade unions.
6. 358. The Government clarifies, however, that the Constitution nevertheless requires the registration of legal instruments with the agency responsible for the establishment of trade union organisations. This responsibility will certainly fall to the Ministry of Labour, following a tradition which for approximately 50 years has seen these matters handled by the Labour Relations Secretariat, and to regional and state delegations which will continue to ensure that the above-mentioned constitutional principles are respected.
7. 359. As regards strikes, the Government states that it will respect the constitutional principle and confine itself to guaranteeing to strikers their right to participate peacefully in any strike and to help prevent accidents which sometimes result from the spirited defence of one's interests.
8. 360. Lastly, the Government states that all of the points raised by the complainants will be taken into consideration to ensure that excellent and fruitful relations are developed with the Workers' Central Organisation (CUT).
9. 361. In a second communication of 17 April 1989, the Government adds that the debates which led to the adoption of the new Constitution took place in a context of democracy and freedom of speech. Parties and political groups representing all currents were allowed to express their opinions in public and congressional debates. Inevitably, the Constitution was not able to accommodate all opinions expressed, inasmuch as many of these were incompatible and sought to promote the aspirations of individual sectors of society. However, the Constitution did succeed in capturing a consensus of the opinions expressed during the months preceding its promulgation, with a view to promoting new social, political and economic conditions in the country.
10. 362. The Government then lists the constitutional provisions contained in Chapter II on social rights (articles 6 to 9) which, according to it, reflect the democratic principles that guided the formulation of the Constitution, namely the social rights to education, health, work, leisure, security, social insurance, the protection of maternity and children, and assistance to the most disadvantaged (section 6).
11. 363. The Constitution proclaims that the rights of workers in cities and throughout the country include: protection against arbitrary and unjustified dismissal, protection against unemployment, the guarantee of a national minimum wage set by law to provide for basic needs, wage increments for night work, profit-sharing, the concept of a family wage for workers with dependants, an eight-hour workday and a 44-hour work-week, a six-hour workday for shift work, a weekly paid day of rest, preferably Sunday, 50 per cent higher pay for overtime, the right to annual leave paid at 133 per cent of normal wages, maternity leave without loss of wages for 120 days, paternity leave as established by law, the promotion of women in the labour market by means of specific incentives, notice of dismissal to be established by law in proportion to the length of service, but in no event less than 30 days, the reduction of occupational risks by means of better health and safety standards, free crèches and other pre-school centres for children up to the age of six, the recognition of collective labour agreements, the protection of workers vis-à-vis automation, insurance against employment accidents at the employer's expense plus the payment of damages by the employer where he is held to be negligent or at fault, the prohibition of wage differentials for equal work based on sex, age or civil status, the prohibition of any discrimination as regards wages, the prohibition of discrimination between manual, technical or intellectual workers or between different occupations prohibitions on night work, dangerous work and unhealthy work as regards persons under 18 years of age, and on any kind of work as regards persons under 14 years of age, unless as apprentices (article 7).
12. 364. The Government explains that the Constitution also enshrined the principle of freedom of association by providing, inter alia, that the law may not require the State's authorisation for the creation of trade unions, that it will reserve the registration of trade unions to competent agencies, and that it will prohibit the authorities from interfering and intervening in the organisation of trade unions. Furthermore, the Constitution prohibits the creation of more than one trade union organisation of any kind to represent a given economic or occupational categories of workers in a given territorial area to be defined by the workers and employers concerned, provided that this area is not smaller than a municipality. The Constitution also provides that it shall be the responsibility of trade unions to defend the collective or individual rights and interests of workers, including judicial and administrative questions; that the General Assembly shall set the contribution which, for a given occupational category, shall be withheld at the source in order to finance the confederational system, independently of the contribution called for by law; and that no worker shall be required to join or remain a member of a trade union. In addition, the Constitution states that trade union organisations must participate in collective bargaining, that members have the right to vote and hold office in trade union organisations, and that it is unlawful to dismiss a unionised worker after he has filed as a candidate for trade union office, or if he is elected to office, even as an alternate, until one year after the expiration of his term in office, unless he is found guilty of a felony. These provisions apply also to the organisation of trade unions in agriculture and fishing (article 8).
13. 365. Lastly, the Government states that the Constitution recognises the right to strike and provides that it is up to the workers to decide when to exercise this right and the interests in respect of which it is used. It adds that the law will define essential services or activities and regulate their maintenance. Any abuses in this connection will be punished as provided for by law (article 9).

C. The Committee's conclusions

1. 366. The Committee notes that the ICFTU's allegations essentially concern threats to freedom of association inherent in certain provisions of the new Constitution which Brazil adopted on 5 October 1988, even though the text embodies a number of improvements, and the difficulties encountered by a trade union confederation, the CUT, in obtaining its registration as a trade union organisation.
2. 367. The Committee notes the assurances furnished by the Government concerning the matter of the CUT's registration, and in particular that the Government will take into consideration all comments made by the complainants with a view to ensuring harmonious and fruitful relations with the CUT.
3. 368. The Committee hopes that the CUT will soon be registered, and that in accordance with the principles of freedom of association and trade union autonomy, it will enjoy all the prerogatives of trade union organisations in the defence and promotion of the economic and social interests of its members, including those which concern collective bargaining of conditions of employment and the exercise of the right to strike.
4. 369. Therefore, the Committee requests the Government to let it know whether the CUT has been duly registered, and to keep it informed of any developments which occur on the basis of the principles mentioned in the foregoing paragraph.
5. 370. On the questions of law, and particularly on the questions of trade union monopoly by occupational category in a territorial area defined by workers and employers, and on the question of the financing of the confederational system, the Committee notes that the opinions expressed by the complainants and the Government are at odds.
6. 371. On the first question, the Committee notes that article 8 of the Constitution provides (a)that the law may not require authorisation for the establishment of a trade union, that it reserves registration to the competent authority and prohibits the authorities from interfering or intervening in the organisation of trade unions. However, article 8 also states that (b)it is forbidden to establish more than one trade union of any kind to represent the same occupational or economic category of workers in a territorial area to be defined by the workers and employers concerned, but in no case smaller than a municipality. In other words, the Constitution itself requires trade union monopoly by occupational category regardless of organisational level. The Committee therefore considers that this constitutional provision is not compatible with the principles of freedom of association.
7. 372. As regards the financing of the confederational system, the Committee notes that article 8 of the Constitution provides that the General Assembly of the trade union shall set the level of contributions to be withheld from wages of given occupational categories of workers and used in financing the confederational system, independently of the contribution provided for by law. It also notes that no worker shall be required to join or remain a member of any trade union. Although the Constitution does not make trade union affiliation compulsory, and does not designate the beneficiary confederation, it requires the payment of what the complainants refer to as a "trade union tax"; in other words, it requires the deduction of a trade union contribution from the wages of workers in different occupational categories for the financing and maintenance of the confederational system of trade union representation, even though it allows the trade union's General Assembly to set the amount of the same. In addition, it also maintains the principle of the trade union contribution provided for by law.
8. 373. The Committee considers that the questions concerning the financing of trade union organisations, as regards both their own budgets and those of federations or confederations, should be governed by the by-laws of the trade unions, federations and confederations themselves, and therefore, that constitutional or legal provisions which require contributions are incompatible with the principles of freedom of association.

The Committee's recommendations

1. 374. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • a) As regards the Workers' Central Organisation (CUT), the Committee expresses the hope that this Confederation will be duly registered as soon as possible, and that it will enjoy all the privileges of trade union organisations in the defence and promotion of the economic and social interests of its members, including the rights of collective bargaining and the right to strike.
   • b) The Committee requests the Government to let it know if and when the CUT has been duly registered, and to keep it informed of any developments in this area.
   • c) While noting with interest that several provisions of the new Constitution have enhanced the freedom of trade unions vis-à-vis the State, the Committee considers that the provisions of article 8 of Brazil's Constitution of 5 October 1988, concerning the prohibition of creating more than one trade union for a given occupational or economic category of workers, regardless of the level of organisation, in a given territorial area which, in no case, may be smaller than a municipality, and those concerning the financing of the confederational system, are not compatible with the principles of freedom of association.
   • d) The Committee expresses the hope that trade union legislation compatible with the principles of freedom of association, and in particular with the right of workers to establish and join organisations of their choice, whether by occupational category or at the level of the enterprise, and the right of workers' organisations freely to draw up their by-laws and run their affairs autonomously, in particular as regards the financing of the confederational system, will soon be adopted.
   • e) The Committee recalls that the ILO is at the disposal of the Government, if the latter so wishes, to help it draft such legislation.