Report in which the committee requests to be kept informed of development - Report No 316, June 1999

Case No 1997 (Brazil) - Complaint date: 16-OCT-98 - Closed

Allegations: Interference by the authorities in the application of a collective agreement

1. 151. The complaint in this case is contained in a communication from the National Confederation of Workers in Water and Air Transport, Fisheries and Ports (CONTTMAF) dated 16 October 1998. The Government sent its observations in a communication dated 14 April 1999.
2. 152. Brazil has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 153. In its communication of 16 October 1998, the National Confederation of Workers in Water and Air Transport, Fisheries and Ports (CONTTMAF) states that it has been informed by the trade unions of workers in the ports of the State of Rio Grande do Sul that after having engaged in collective bargaining in accordance with the laws and regulations governing the rights and freedoms enshrined in the Constitution of Brazil, they had signed a collective agreement with the representatives of the enterprises in this sector. The complainant alleges that on 1 September 1998, after numerous threats, the executive secretary of the Executive Group for Port Modernization (GEMPO) convened and held a meeting of port sector employers in a military facility in the city of Porto Alegre and ordered them to denounce immediately the collective agreement that had been concluded by mutual consent between the workers and the employers. According to the complainant, the executive secretary cited among other reasons the fact that the collective agreement was not to his liking and fixed a 30-day time limit for the enterprises in this sector to stop complying with the agreement, failing which coercive measures would be applied, such as a tax audit, withdrawal of their authorizations and the imposition of fines.

B. The Government's reply

1. 154. In its communication dated 14 April 1999 the Government explains that on 27 April 1995 the President of the Republic, through Decree No. 1467, established the Executive Group for Port Modernization (GEMPO) in order to coordinate the necessary measures to modernize the Brazilian port system and ensure full application of the provisions laid down in Act No. 8630/93. The Government states that section 2 of the Decree provides that measures shall be adopted to establish a new system of relations between workers and users of port services, in accordance with Act No. 8630 of 1993, and that measures shall be adopted in order to ensure the effective functioning of the manpower administration bodies and the port authorities and to streamline the structures and procedures of the port administrations. Since the Decree was promulgated, the GEMPO has adhered faithfully to the Government's commitment to modernize every aspect of Brazilian port life, in a democratic manner, and in the spirit of Act No. 8630/93, which values negotiation as the prime component of labour-management relations, by trying out a model for the privatization of port activities and devolving a substantial part of the decision-making authority that had previously belonged to the State to the local port community. The GEMPO has gradually introduced the changes prescribed by the Act, with broad participation of the port community and society itself and giving considerable attention to social aspects, to ensure that everyone benefits from the modernization process.
2. 155. The Government states that in Porto Alegre the trade union leadership has obstructed the application of this Act in order to maintain a status quo that has become entrenched over the decades and is characterized by unacceptable abuses on the part of the trade unions, using the powers granted to them by the State in the past to administer the supply of temporary labour, which ultimately became a means of serving the interests of the few to the detriment of the vast majority of workers. These trade union leaders wish to maintain this shameful chapter in the history of Brazilian ports, which is characterized by the obligation to hire workers in excess of actual needs, by illegal preferential treatment of some workers to the detriment of others, and even the conclusion of collective agreements that are in blatant violation of the national legislation.
3. 156. In this context, states the Government, the executive secretary of the Executive Group for Port Modernization (GEMPO) convened and held a meeting of employers in the Porto Alegre harbourmaster's office (public facilities that are accessible to Brazilian citizens) at which he advised employers to denounce the collective agreement for the sector on grounds of abuses committed by the trade unions under cover of this agreement, which had given rise to investigations into the management of the Manpower Administration Body (OGMO) by the labour inspectorate, in accordance with the legislation in force. The Government explains further that the unfortunate collective agreement had illegally transferred to the trade unions responsibilities which under Act No. 8630/93 should be assumed by the OGMO and that the trade unions had in fact committed all kinds of abuses as a result of this illegal transfer of powers. The Government rejects the allegation that the executive secretary of the GEMPO had threatened the enterprises with tax audits and withdrawal of their authorizations and adds that the meeting in question had been held at the request of some of the port operators wishing to straighten out the chaotic situation prevailing in the OGMO of Porto Alegre, which had given rise to investigations by the labour inspectorate.
4. 157. Lastly, the Government states that the executive secretary of the GEMPO acted within the legal powers vested in him by the national legal system and in defence of the interests of society and the workers themselves. As regards the meeting held on 1 September 1998, the Government points out that the executive secretary discussed with those present the need for appropriate restructuring of the OGMO of Porto Alegre as soon as possible, in the light of the investigations carried out by the inspectorates of the Ministry of Labour and the National Social Security Institute. The executive secretary also advised the enterprises to lodge complaints with the labour courts against the unfortunate collective agreement, since it was contrary to the legislation in force, in particular with regard to the powers vested in the OGMO, which could not be delegated.

C. The Committee's conclusions

1. 158. The Committee observes that in this case the complainant alleges that the authorities of the Executive Group for Port Modernization (GEMPO) convened a meeting of the enterprises of the port sector of the State of Rio Grande do Sul and ordered them to denounce the collective agreement that had been concluded with the trade unions of workers of the sector, fixing a 30-day time limit for them to stop complying with the agreement, failing which coercive measures would be applied (tax audits, imposition of fines, etc.).
2. 159. The Committee notes that, according to the Government, at the request of some port operators wishing to straighten out the chaotic situation prevailing in the Manpower Administration Body of Porto Alegre (which had given rise to investigations by the labour inspectorate), the executive secretary of the GEMPO had convened and held a meeting of port sector employers in the Porto Alegre harbourmaster's office, advising them to denounce the collective agreement in the sector (1) on grounds of abuses committed by the trade unions under cover of the agreement, which had given rise to investigations into the management of the Manpower Administration Body (OGMO) by the labour inspectorate, and (2) on the grounds that the collective agreement contained provisions contrary to the legislation in force. The Committee also notes that the Government rejects the allegation that the enterprises in the port sector had been threatened with the application of sanctions for complying with the collective agreement.
3. 160. The Committee notes, firstly, that, as regards the holding and proceedings of the meeting with the enterprises of the port sector of the city of Porto Alegre that had been convened by the GEMPO, the versions of the complainant and the Government contradict each other: according to the former, the GEMPO "ordered" the enterprises to denounce the collective agreement, while according to the Government the GEMPO "advised" the enterprises to do so. In this respect, the Committee observes that under the provisions of Decree No. 1467/95 establishing the Executive Group for Port Modernization (GEMPO), the authorities of that body are empowered to hold a meeting in the event of problems arising in the management of the Manpower Administration Body of Porto Alegre (section 2(iv) of the Decree provides that: "it is the responsibility of the GEMPO: to adopt measures aimed at ensuring the effective functioning of the manpower administration bodies").
4. 161. Moreover, the Committee observes that at the time of the examination of this case (more than eight months after the meeting convened by the GEMPO was held) neither the complainant nor the Government have informed it that the enterprises of the Porto Alegre port sector have denounced the collective agreement as a result of the meeting to which the complainant objected or that sanctions have been applied to them for complying with the agreement in question. In these circumstances, the Committee requests the complainant and the Government to keep it informed in this respect.

The Committee's recommendations

1. 162. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the complainant and the Government to keep it informed on whether the enterprises of the Porto Alegre port sector have denounced the collective agreement as a result of the meeting to which the complainant objected and to indicate whether sanctions have been applied to them for complying with the agreement.