Definitive Report - Report No 353, March 2009

Case No 2635 (Brazil) - Complaint date: 10-MAR-08 - Closed

Allegations: The complainant organizations allege acts of anti-union discrimination in particular, arbitrary dismissals and discrimination against trade union leaders and a large number of workers

1. 435. The complaint is contained in a communication from the Union of Workers in the Urban Industries of the State of Pará (STIUPA) dated 10 March 2008.
2. 436. The Government sent its observations in a communication dated 5 September 2008.
3. 437. Brazil has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) and the Workers’ Representatives Convention, 1971 (No. 135), but has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. The complainant’s allegations

1. 438. In its communication dated 10 March 2008, the Union of Workers in the Urban Industries of the State of Pará (STIUPA) alleges that, between January and April 2005, the company Centrales Eléctricas de Pará SA dismissed 257 workers in an arbitrary and discriminatory manner (117 were subsequently reinstated following a public civil action with an application for a provisional protection order). The complainant organization adds that, in addition to the 257 workers dismissed, four trade union leaders were dismissed and it alleges that they were not covered by the security provided for under section 522 of the consolidated labour laws. The dismissals of the trade union leaders were reported to the Labour and Employment Prosecution Service and their reinstatement was achieved following a public civil action.
2. 439. From August 2007, the trade union and the company initiated negotiations through which an agreement was reached which put an end to a dispute which had been developing over more than two years. It was agreed that the dismissed workers who were not reinstated would be paid 12 months’ basic wages and those who were reinstated would be paid four months’ wages. The agreement was concluded and officially approved on 15 October 2007.
3. 440. The STIUPA alleges that on 7 December 2007, the company dismissed 50 of the 117 workers who had been reinstated, without complying with the above agreement and falsely stating that the trade union organization had agreed to the dismissals. Of the 50 dismissed workers, only four were not unionized. The complainant organization reports that in the face of the company’s anti-union attitude a public civil action was lodged and the reinstatement of the dismissed workers was achieved on 17 December 2007. The STIUPA reports that the judicial authority recognized the discriminatory and abusive nature of the dismissals and ordered the company to refrain from such practices under penalty of a fine. According to the STIUPA, the company’s anti-union attitude is not new, given that, in 2002, a group of managers formed a movement to weaken the trade union. It also reports that, through the Ministry of Labour, three agreements were concluded to modify the company’s conduct with a view to improving the industrial relations between the company and the trade union. Under the first agreement the company was obliged to refrain from adopting any kind of negative attitude towards the unionization of workers and the free movement of trade union leaders on the company’s premises and to maintain harmonious relations with the trade union.

B. The Government’s reply

1. 441. In its communication dated 5 September 2008, the Government states that the Ministry of Labour and Employment is determined to find a legal solution to the wrongful dismissals which occur in the labour market and which are reflected in the alleged events in this case. An example of this determination is the submission to the National Congress of a proposal for the ratification of Convention No. 158. This Convention was already previously approved by the Congress of Brazil in September 1992, but it was subsequently denounced and has not been in force as of December 1996. As a result of Constitutional Amendment No. 45, the trade union organizations requested that the ratification of the Convention concerned be examined. This request was met by the Government in 2007 and the matter was submitted for discussion by the Tripartite Committee on International Relations (CTRI), a tripartite advisory body of the Ministry of Labour and Employment.
2. 442. In a meeting held on 24 October 2007, the CTRI issued an opinion on the matter and, with the opposition of the employer’s sector, it decided to recommend to the Minister of State for Labour and Employment, in accordance with the provisions of its internal regulations that Convention No. 158 should be sent to the National Congress for consideration. The Government points out that the decision to send the Convention to the National Congress for consideration is supported by the most representative trade union confederations and by the National Association of Labour Magistrates, a body which gathers together labour judges from across the country.
3. 443. The Government considers that ratification of Convention No. 158 will allow one of the most significant problems in Brazil’s labour market today to be tackled: the high turnover of employees, which is a tool used to reduce wages costs. This Convention is currently being examined by the Foreign Relations Committee of the Chamber of Deputies and the Government is taking all possible steps to ensure that the Congress approves it and is able to ratify this major instrument designed to combat wrongful dismissals, as occurred in the case presented to the Committee.
4. 444. The Government points out that the initiative relating to the ratification of Convention No. 158 is part of a set of Government actions designed to make its labour relations more democratic and ensure that the legislation provides for more comprehensive regulation of anti-union practices, which is currently lacking. The Government emphasizes that although freedom of association is protected under the Constitution and the legislation offers protection of constitutional rights in the case of certain abuses (for example under the Strike Act), the national legislation does not provide a precise definition of anti-union acts. This prevents the social partners and the Ministry of Labour and Employment from applying effective preventive and repressive measures to control practices such as those reported in this case.
5. 445. The Government points out that, in an attempt to resolve this issue, it has prepared, in collaboration with workers and employers within the National Labour Forum, a proposal for trade union reform which includes a more precise definition of anti-union acts and provides for sanctions which may be imposed on offenders by the Ministry of Labour and Employment. The draft Bill on trade union relations (No. 369/05), which is currently in the final stages before the National Congress, provides for a number of situations which constitute anti-union conduct. Any act which is intended to prevent or obstruct trade union activity by employers or workers shall be regarded as an anti-union act and the offender may be liable to sanctions.
6. 446. Under this proposal, the following shall constitute anti-union conduct: making recruitment or continued employment subject to membership, non-membership or termination of membership of a trade union organization; dismissing or discriminating against a worker on the grounds of his or her membership or activities in a trade union organization, participation in a strike or representation of workers in the workplace; granting more favourable financial treatment in a discriminatory manner on the grounds of trade union membership or activity; inciting workers to request their exclusion from proceedings initiated by a trade union organization in defence of their individual rights; forcing a worker to return to work to obstruct or hinder the exercise of the right to strike; hiring workers outside the purview of the law with the aim of replacing workers on strike; and violating the duty of good faith in collective bargaining. Under the provisions of the draft Bill, workers may also commit anti-union acts. The Government emphasizes that a good proposal to resolve this issue inevitably has to reflect the provisions of Convention Nos 98 and 135, which have been ratified by Brazil. The proposal must also establish effective mechanisms for the imposition of sanctions on offenders, which is being met with considerable resistance from Brazil’s employer’s sector. The Government indicates that the proposal originating from the National Labour Forum fills the legislative void by providing a more precise definition of anti-union acts which may be committed by workers and employers and at the same time imposing sanctions and penalties which ensure the effectiveness of the legislation. The Government explains that it was not possible to reach a consensus in the National Labour Forum on the issue of sanctions and penalties, in particular with regard to the amount of the fine to be imposed in the case of anti-union conduct. The employers’ opposition with regard to the stipulated amount of the fines has had an effect on the length of time taken to pass the draft through the National Congress, but has in no way diminished the Government’s expectation that the draft will be approved as soon as possible. It is a trial of strength, which is typical in a democratic society, in which the different interests of society have to be taken into account.

C. The Committee’s conclusions

1. 447. The Committee observes that in the present case the complainant organization alleges that on several occasions, between 2005 and 2007, the company Centrales Eléctricas de Pará SA dismissed a number of trade union leaders and 257 workers in an arbitrary and discriminatory manner (the trade union leaders and a large number of workers were subsequently reinstated following legal action; the judicial authority recognized the discriminatory and abusive nature of the dismissals and ordered the company to refrain from such practices under penalty of a fine) and that the company has been adopting an anti-union attitude since 2002.
2. 448. The Committee notes that the Government reports that: (1) it is determined to find a legal solution to the wrongful dismissals which occur in the labour market and which are reflected in the alleged events in this case, and that, as an example of its determination, it has submitted to the National Congress a proposal for the ratification of Convention No. 158; (2) the initiative concerning the ratification of that Convention forms part of a set of actions aimed at making labour relations more democratic and ensuring that the laws of Brazil provide for more comprehensive regulation of anti-union practices, currently lacking in the legislation; (3) although freedom of association is protected under the Constitution, the national legislation does not define anti-union acts and this prevents the Ministry of Labour and Employment from applying effective preventive and repressive measures to control acts such as those reported in this case; (4) in an attempt to resolve this issue, the Government, together with workers and employers within the National Labour Forum, has prepared a proposal for trade union reform (No. 369/05, which is currently in the final stages before the National Congress) which gives a more complete definition of anti-union acts and provides for sanctions which may be imposed on offenders by the Ministry of Labour and Employment; (5) the draft Bill on trade union relations, currently before the National Congress, provides for a number of situations which constitute anti-union practice (making recruitment or continued employment subject to membership or non-membership of a trade union organization, dismissing or discriminating against a worker on the grounds of his or her membership or activities in a trade union organization, participation in a strike or representation in the workplace, etc.); (6) a good proposal to resolve this issue inevitably has to reflect the provisions of Conventions Nos 98 and 135 and must establish effective mechanisms for the imposition of sanctions on offenders, which has been met with a difference of opinion as to the level of sanctions to be imposed in the case of anti-union behaviour between employers and workers; (7) the National Labour Forum’s proposal fills the legislative gap by providing a more complete definition of anti-union acts which may be committed by employers and workers and at the same time imposing sanctions and penalties which ensure the effectiveness of the legislation; and (8) it was not possible to achieve a consensus in the National Labour Forum on the issue of sanctions and penalties, in particular with regard to the amount of the fine to be imposed in the case of anti-union conduct, but while this has had an effect on the length of time taken to pass the draft through the National Congress, it has in no way diminished the Government’s expectation that the draft will be approved as soon as possible.
3. 449. The Committee observes that the Government acknowledges the anti-union dismissals alleged and that these dismissals were resolved through an agreement between the parties or by a court ruling. In these circumstances, the Committee requests the Government to continue to ensure respect for trade union rights in the company in question.
4. 450. In general, the Committee notes that the Government points out that the lack of definition of anti-union acts in the legislation prevents the Ministry of Labour and Employment from applying effective preventive and repressive measures to control acts such as those reported in this case. In this respect, the Committee notes with interest that initiatives have been taken relating to the adoption of legislation (a proposal for trade union reform) which includes a more precise definition of anti-union acts and provides for sanctions which may be imposed on offenders by the Ministry of Labour and Employment. In this regard, the Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations for it to examine with regard to the application of Convention No. 98.

The Committee's recommendations

1. 451. In the light of its foregoing conclusions, the Committee requests the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to continue to ensure respect for trade union rights in the company Centrales Eléctricas de Pará SA.
   • (b) The Committee notes with interest the initiatives relating to the adoption of legislation (proposal for trade union reform) which includes a more complete definition of antiunion acts and provides for penalties which may be imposed on offenders by the Ministry of Labour and Employment, the Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations, with regard to the application of Convention No. 98.