Report in which the committee requests to be kept informed of development - Report No 346, June 2007

Case No 2523 (Brazil) - Complaint date: 11-OCT-06 - Closed

Allegations: the complainant alleges that: (i) numerous trade union officials have been dismissed; (ii) the offence of anti-union acts is not recognized in legislation, and there is therefore no protection mechanism to avoid discrimination against workers on the grounds of their membership of an organization; and (iii) the limited scope of the benefits of legal protection – through job security – afforded to officials of workers’ representative organizations has proved to be insufficient to fulfil the purpose of guaranteeing freedom of association

337. The complaint in this case is contained in communications from the National Association of Higher Education Teachers (ANDES-SINDICATO NACIONAL) dated 11 and 19 October 2006. In a communication dated 20 December 2006, ANDES-SINDICATO NACIONAL sent additional information.

1. 338. The Government sent its observations in a communication dated 8 March 2007.
2. 339. 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. The complainant’s allegations

1. 340. In its communications of 11 and 19 October and 22 December 2006, ANDES-SINDICATO NACIONAL alleges that the Government has not taken measures to combat the anti-union behaviour repeatedly employed by private higher education institutions (PHEIs), including acts of intimidation and the dismissal of officials of organizations representing teachers. ANDES-SINDICATO NACIONAL states that, in the last two decades, there has been a significant increase in the number of PHEIs in the country. This has given rise to an increase in competition between faculties, university centres and private universities, leading to the adoption, by private universities, of policies intended to increase profits at the expense of ensuring the quality of education and of the professionals involved. Against this background, the PHEIs have attempted to reduce their labour costs and have consequently obstructed the autonomous organization of teachers into representative bodies, given that the creation of such bodies could make it difficult to apply employment conditions unilaterally. Interference by management in these teachers’ trade union activities takes the form of explicit prohibitions, veiled threats and, in the vast majority of cases, the dismissal of trade union officials.
2. 341. Specifically, ANDES-SINDICATO NACIONAL cites the following acts of anti-union discrimination:
3. – Triangulo Mineiro University Centre (UNIT). In March 2001, the teachers at this centre decided to form the Association of UNIT Teachers (SINDUNIT) – a branch of ANDES-SINDICATO NACIONAL – and in August the same year, UNIT dismissed ten members of the SINDUNIT executive committee;
4. – Methodist University of Piracicaba (UNIMEP). The seven members of the Council of Representatives of the Trade Union Branch of Teachers at the UNIMEP have recently been dismissed;
5. – Catholic University of Brasilia. In November 2005, eight teachers at the University formed a body named the Trade Union Cultural Association of Teachers at the Catholic University of Brasilia (ADUCB-Sección Sindical). On 18 November, the teachers in question informed the university rector’s office of this fact. On 9 December 2005, all the teachers who had participated in the formation of ADUCB-Sección Sindical were dismissed. This has caused intimidation among the remaining teaching staff at the institution;
6. – Ipojuca Valley Faculty. In 2003, a number of teachers formed the Trade Union Branch of Teachers at Ipojuca Valley Faculty (SINDFAVIP). Following the trade union organization’s general assembly, on 5 February 2004, the faculty authorities expressly forbade, in writing, any collective activity being undertaken by the trade union body on its premises and, in July, two SINDFAVIP union officials were dismissed;
7. – Caldas Novas Faculty, Goiás State. In 2004, all the executive members of the Trade Union Branch of Teachers at Caldas Novas Faculty (SINDUNICALDAS) were dismissed.
8. 342. ANDES-SINDICATO NACIONAL states that, despite successive and notorious anti-union acts within the PHEI system, the State has not taken the necessary measures to counter this scourge. ANDES-SINDICATO NACIONAL adds that, although workers and trade union organizations have submitted complaints through the public administration, the competent authorities have not taken action to monitor or prohibit the practice of discriminatory behaviour present in the PHEIs, be it in the interior of the country or in metropolitan areas. The complainant declares that the offence of anti-union acts is not recognized in legislation, and that there is therefore no protection mechanism to avoid discrimination against workers on the grounds of their membership of an organization. Furthermore, the legal protection afforded to officials of workers’ representative organizations – through job security – has proved to be insufficient to fulfil the purpose of guaranteeing freedom of association. According to the complainant, this can be seen in the interpretation that the judicial authority places upon article 8, section VIII of the Federal Constitution, and section 543.3 and 522 of the Consolidated Labour Acts, limiting security to a certain number of union officials (a maximum of 20 members), irrespective of the size and structure of the trade union organization.
9. 343. This restrictive interpretation complicates the functioning of trade union organizations which, like ANDES-SINDICATO NACIONAL, represent a particular category over a wide geographical area and, as a result, need a decentralized management system to function effectively across all workplaces. ANDES-SINDICATO NACIONAL represents teachers in public and private higher education institutions throughout the country and is organized into trade union branches based in faculties, university centres and universities. The above interpretation impedes the extension of the right to security to branch officials carrying out activities directly in workplaces, who are therefore subject to interference and pressure from management.
10. 344. The complainant claims that the State’s failure to address anti-union practices can only be rectified if the dismissed teachers are reinstated in their posts. Employers simply paying damages or being subject to any other penalty will not make amends for the violations of freedom of association arising from discriminatory behaviour. If such behaviour persists, the balance between the social partners will be placed in jeopardy.
11. B. The Government’s reply
12. 345. In its communication of 8 March 2007, the Government states that, under current legislation, the Ministry of Labour and Employment does not have the power to take punitive measures against individuals, enterprises or trade unions accused of anti-union practices. This is the responsibility of the judicial authority. The Government adds that, even though it does not have the power to act, it requested information from the Regional Labour Delegations for the Federal District and Goiás and the Regional Labour Subdelegation for Caruaru-Pe, with the aim of ascertaining the true nature of the circumstances which formed the subject of the complaints. In this regard, the Government states that:
13. – the Regional Labour Delegation for the Federal District has reported that it has no record of any complaint regarding alleged anti-union practices by the Catholic University of Brasilia submitted by either a trade union organization or an official affected;
14. – the Regional Labour Delegation for Goiás has stated that no request for mediation in the dispute between the parties in question has been submitted and that, in the course of various inspections carried out at the Caldas Novas Faculty, several irregularities were identified with respect to employee registration and delays in payment of salaries. Four infringement proceedings were brought against the institution in that regard;
15. – the Regional Labour Subdelegation for Caruaru-Pe has stated that: (1) neither ANDES-SINDICATO NACIONAL, nor the SINDFAVIP, nor any teacher, has formally requested mediation between SINDFAVIP and the Ipojuca Valley Faculty in relation to alleged anti-union practices on the part of the Faculty; (2) on 22 July, the Subdelegation received a report from SINDFAVIP which stated that the Faculty in question was to dismiss two of its officials, Mr José Luciano Albino Barbosa and Ms Nadine Agra; (3) as a result of official authorization of the terms for cancelling the employment contracts of the officials in question, the Faculty was invited to explain itself in that respect. The institution declared that the teachers in question did not enjoy the security provided for in law and, faced with this controversy, the Subdelegation refused to authorize the terms of cancellation. The parties decided to bring the dispute before the judicial authority; and (4) the judicial authority found that the individuals in question did not enjoy the right to trade union security, given that it is not possible, under the provisions of the legal system, to form trade unions whose jurisdiction – geographical area of activity – is smaller than a municipality nor to form a trade union at enterprise level.
16. 346. The Government states that, although it does not have the power to take action against anti-union practices, the Ministry of Labour and Employment has attempted to address these complaints, as a special case, and has tried to resolve the disputes within the bounds of the actions open to it. The Government states that, in an attempt to overcome its lack of legal competence, the Ministry of Labour and Employment, together with workers’ and employers’ representatives, has, within the National Labour Forum, prepared a proposal for trade union reform which includes, among other things, a definition of anti-union acts and the possibility of the administrative authorities imposing penalties. The proposal for reform is currently before the National Congress.
17. 347. Lastly, the Government states that, in accordance with the provisions of the internal legal system, trade union organizations acquire the prerogative to represent professional or economic categories once they have been registered with the competent body under the Federal Constitution and only legitimate representation can support the inherent constitutional rights of trade unions, such as security for officials. In its capacity as the body recognized by the judicial authority as competent to grant trade union registration, the Ministry of Labour and Employment maintains the National Register of Trade Union Bodies, for the purpose of monitoring the single trade union system and registering trade union organizations. In this regard, according to existing data held in the Register, none of the organizations mentioned by ANDES-SINDICATO NACIONAL are registered as trade unions.

C. The Committee’s conclusions

1. 348. The Committee observes that the complainant alleges that numerous trade union officials have been dismissed and that, although workers and trade union organizations have submitted complaints through the public administration, the competent authorities have not taken action to monitor or prohibit the practice of discriminatory behaviour present in the PHEIs, be it in the interior of the country or in metropolitan areas. Specifically, ANDES-SINDICATO NACIONAL alleges: (1) that trade union officials – in some cases the entire executive committee – have been dismissed at various private education institutions in Brazil (the UNIT, the UNIMEP, the Catholic University of Brasilia, the Ipojuca Valley Faculty and the Caldas Novas Faculty); (2) that the offence of anti-union acts is not recognized in legislation, and that there is therefore no protection mechanism to avoid discrimination against workers on the grounds of their membership of an organization; and (3) that the limited scope of the benefits of legal protection – through job security – afforded to officials of workers’ representative organizations has proved to be insufficient to fulfil the purpose of guaranteeing freedom of association (according to the complainant, the Supreme Federal Tribunal has interpreted legislation to mean that only a maximum of 20 officials should enjoy job security, irrespective of the size and structure of the trade union body).
2. 349. With regard to the alleged dismissal of two union officials of the SINDFAVIP in July 2004, the Committee takes note of the Government’s statement that the Regional Labour Subdelegation for Caruaru-Pe has stated that: (1) neither ANDES-SINDICATO NACIONAL, nor the SINDFAVIP, nor any teacher, has formally requested mediation between SINDFAVIP and the Ipojuca Valley Faculty in relation to alleged anti-union practices on the part of the Faculty; (2) on 22 July, the Subdelegation received a report from SINDFAVIP which stated that the Faculty in question was to dismiss two of its officials, Mr José Luciano Albino Barbosa and Ms Nadine Agra; (3) with regard to the process of officially authorizing the terms for cancelling the employment contracts of the officials in question, the administrative authority invited the Faculty to explain itself in that respect. The institution declared that the teachers in question did not enjoy the trade union immunity provided for in law and, faced with this controversy, the Subdelegation refused to authorize the terms of cancellation; and (4) the parties decided to bring the dispute before the judicial authority. The judicial authority found that the individuals in question did not enjoy the right to trade union immunity, given that it is not possible, under the provisions of the legal system, to form trade unions whose jurisdiction is smaller than a municipality nor to form a trade union at enterprise level.
3. 350. In this regard, observing that the judicial authority has not denied that the dismissed employees were officials of the SINDFAVIP but has limited itself to stating that they did not enjoy union protection or immunity, given that it is not possible to form trade unions whose jurisdiction is smaller than a municipality nor to form a trade union at enterprise level, the Committee wishes to underline that “the free exercise of the right to establish and join unions implies the free determination of the structure and composition of unions and that workers should be free to decide whether they prefer to establish, at the primary level, a works union or another form of basic organization, such as an industrial or craft union” [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 333 and 334]. Furthermore, the Committee recalls that, in its examination of a case involving Brazil, it stated that “the provisions of a national constitution concerning the prohibition of creating more than one trade union for a given occupational or economic category of workers, regardless of the level of organization, in a given territorial area which, in no case, may be smaller than a municipality are not compatible with the principles of freedom of association” [see 265th Report, Case No. 1487, para. 374(c)]. In these circumstances, the Committee requests the Government: (i) to take the necessary steps to amend the legislation so as to allow workers to form trade union organizations at the enterprise level, if they so wish; and (ii) having regard to the national context and the specific circumstances of this case, in particular the fact that the SINDFAVIP union officials were dismissed under legislation which is not in conformity with the principles of freedom of association, to take steps to have them reinstated. The Committee requests the Government to keep it informed in this regard.
4. 351. With regard to the allegations concerning the dismissal, on 9 December 2005, of all the teachers who had participated in the creation of the ADUCB-Sección Sindical and the dismissal, in 2004, of all the executive members of the SINDUNICALDAS, the Committee takes note of the Government’s statement that: (1) the Regional Labour Delegation for the Federal District has reported that it has no record of any complaint regarding alleged anti-union practices by the Catholic University of Brasilia submitted by either a trade union organization or an official affected; and (2) the Regional Labour Delegation for Goiás has stated that no request for mediation in the dispute between the parties in question has been submitted in respect of the allegations made and that penalties were imposed on the enterprise for other irregularities. In this regard, the Committee observes that, although complaints have not been submitted to the administrative authorities or the judicial authority in respect of these dismissals, the complainant has submitted with its complaint the termination of contract forms used by the Catholic University of Brasilia, from which it emerges that, in order to dismiss officials of the ADUCB-Sección Sindical, reasons “of an administrative nature” were cited. Furthermore, taking into account the judicial ruling under which trade union immunity was not granted to union officials at another education institution because they belonged to an enterprise union which, by law, cannot exist, the Committee cannot exclude the possibility that the officials affected therefore decided not to turn to the labour or judicial authorities. The Committee recalls that “one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures, and that this protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions; the Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom” [see Digest, op. cit., para. 799]. In these circumstances, the Committee requests the Government to take measures without delay to hold an investigation to determine the motives and specific facts behind the dismissal of officials of the ADUCB-Sección Sindical and the SINDUNICALDAS and, if it is established that they were dismissed for carrying out legitimate trade union activities, that it take steps, having regard to the national context and the specific circumstances of this case, to have them reinstated in their posts. The Committee requests the Government to keep it informed in this regard.
5. 352. With regard to the allegations concerning the dismissal of ten members of the executive committee of the SINDUNIT – a branch of ANDES-SINDICATO NACIONAL – and the seven members of the Council of Representatives of the Trade Union Branch of Teachers at the UNIMEP, the Committee observes that the Government has not sent its observations on this matter. The Committee requests the Government to take measures without delay to hold an investigation to determine the motives and specific facts behind the dismissal of these officials and, if it is established that they were dismissed for carrying out legitimate trade union activities, that it take steps, having regard to the national context and the specific circumstances of this case, to have them reinstated in their posts. The Committee requests the Government to keep it informed in this regard.
6. 353. With regard to the allegation that national legislation does not recognize the offence of anti-union acts against union members, and that there is therefore no protection mechanism to avoid discrimination against workers on the grounds of their membership of an organization, the Committee takes note of the Government’s statement that: (1) although it does not have the power to take action against anti-union practices, the Ministry of Labour and Employment has attempted to address these complaints, as a special case, and has tried to resolve the disputes within the bounds of the actions open to it; and (2) in an attempt to overcome its lack of legal competence, the Ministry of Labour and Employment, together with workers’ and employers’ representatives, has, within the National Labour Forum, prepared a proposal for trade union reform which includes, among other things, a definition of anti-union acts and the possibility of the administrative authorities imposing penalties. The proposal for reform is currently before the National Congress. The Committee requests the Government to take measures to modify the legislation so as to bring it into conformity with freedom of association principles and to keep it informed of developments in the legal passage of the aforementioned proposal for trade union reform. Furthermore, the Committee reminds the Government that it may avail itself of the technical assistance of the Office, if it so wishes.
7. 354. With regard to the allegation concerning the limited scope of the benefits of legal protection – through job security – afforded to officials of workers’ representative organizations (according to the complainant, the Supreme Federal Tribunal has ruled, through jurisprudence, that, even irrespective of the size and structure of a trade union body, trade union immunity cannot be granted to more than 20 officials; see the ten provisions of section 522 of the Consolidated Labour Acts and supplementary provisions), the Committee observes that the Government has not sent its observations on this matter. The Committee observes that section 522 of the Consolidated Labour Acts lays down that the administration of a trade union shall be carried out by an executive comprising a maximum of seven and a consultative council composed of a minimum of three members, both bodies being elected by the general assembly. In this regard, bearing in mind that the complainant is a national organization, the Committee requests the Government to bring the parties together to hold further discussions on this matter.

The Committee's recommendations

1. 355. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government: (i) to take the necessary steps to amend the legislation so as to allow workers to form trade union organizations at the enterprise level, if they so wish; and (ii) having regard to the national context and the specific circumstances of this case, to take steps to have the two officials of SINDFAVIP reinstated. The Committee requests the Government to keep it informed in this regard.
   • (b) With regard to the allegations concerning the dismissal, on 9 December 2005, of all the teachers who had participated in the creation of the ADUCB-Sección Sindical and the dismissal, in 2004, of all the executive members of the SINDUNICALDAS, the Committee requests the Government to take measures without delay to hold an investigation to determine the motives and specific facts behind the dismissal of the officials in question and, if it is established that they were dismissed for carrying out legitimate trade union activities, that it take steps, having regard to the national context and the specific circumstances of this case, to have them reinstated in their posts. The Committee requests the Government to keep it informed in this regard.
   • (c) With regard to the allegations concerning the dismissal of ten members of the executive committee of the SINDUNIT – a branch of ANDES-SINDICATO NACIONAL – and the seven members of the Council of Representatives of the Trade Union Branch of Teachers at the UNIMEP, the Committee requests the Government to take measures without delay to hold an investigation to determine the motives and specific facts behind the dismissal of these officials and, if it is established that they were dismissed for carrying out legitimate trade union activities, that it take steps, having regard to the national context and the specific circumstances of this case, to have them reinstated in their posts. The Committee requests the Government to keep it informed in this regard.
   • (d) With regard to the allegation that national legislation does not recognize the offence of anti-union acts against union members, and that there is therefore no protection mechanism to avoid discrimination against workers on the grounds of their membership of an organization, the Committee requests the Government to take measures to amend the legislation so as to bring it into conformity with freedom of association principles and to keep it informed of developments in the legal passage of the proposal for trade union reform to which the Government refers and which covers this issue. Moreover, the Committee reminds the Government that it may avail itself of the technical assistance of the Office, if it so wishes.
   • (e) With regard to the allegation concerning the limited scope of the benefits of legal protection – through job security – afforded to officials of workers’ representative organizations, the Committee, bearing in mind that the complainant is a national organization, requests the Government to bring the parties together to hold further discussions on this matter.