Report in which the committee requests to be kept informed of development - Report No 353, March 2009

Case No 2636 (Brazil) - Complaint date: 14-MAR-08 - Closed

Allegations: the complainant organizations allege that a long-serving official was dismissed on anti-union grounds

1. 452. The complaint is contained in a communication of the Union of Workers in Metal, Engineering and Electrical Equipment Industries of Caxias do Sul and the Central Organization of Workers of Brazil (CTB) dated 14 March 2008.
2. 453. The Government sent its observations in a communication dated 5 September 2008.
3. 454. 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), and the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainants’ allegations

1. 455. In their communication of 14 March 2008, the Union of Workers in Metal, Engineering and Electrical Equipment Industries of Caxias do Sul and the CTB allege that, in violation of the principles of freedom of association, the management of the enterprise FRASLE SA dismissed trade union official Jorge Antonio Rodríguez on 27 January 2008. The complainant organizations provide the following details about the career of Mr Rodríguez as a trade union official: in 1990, he was elected as vice-chairperson; in 1993, he was elected as chairperson; in 1996 and 1999, he was re-elected as chairperson; in 2002, he was elected as director of legal and labour relations matters and in 2005, he was elected as chairperson of the union’s financial board.
2. 456. According to the complainant organizations, during the whole time that Mr Rodríguez worked at the enterprise, he never committed an illegal act or breached a legal or contractual obligation that would justify the unilateral decision to terminate his contract. Even if he had committed serious misconduct, the enterprise should have suspended the worker and called on the judicial authority to conduct an investigation to prove that an illegal act had been committed. No such investigation took place, because the trade union official did not commit any serious misconduct and the enterprise simply dismissed him without just cause.
3. 457. According to the complainant organizations, the dismissal was a penalty for the official’s trade union activity and for his firm stand in defence of workers’ rights (during his last term of office, he had been called upon to intervene on several occasions to defend the rights of the entire occupational category that he represented).
4. 458. The complainant organizations report that, in a show of solidarity and gratitude for Jorge Antonio Rodríguez, the workers of the enterprise staged a work stoppage on 28 January 2008. The complainant organizations consider that the dismissal without just cause of the official in question is an act of discrimination that violates freedom of association and undermines the right of workers to trade union representation in the workplace.

B. The Government’s reply

1. 459. In its communication of 5 September 2008, the Government states that it is unbelievable and unacceptable that a trade union official in the exercise of the office entrusted to him by his fellow workers – which expired on 5 December 2008 – should have been the victim of a gross violation of the rights guaranteed by the Constitution of Brazil. In fact, in accordance with the provisions of Convention No. 98, the Constitution guarantees job security for all trade union officials and their substitutes who are elected by workers (section 8, paragraph VIII). The trade union official in question was elected to serve as the chairperson of the supervisory board of the union, and as such he enjoyed the guarantee of job security provided under section 8 of the Constitution.
2. 460. In terms of taking a decisive measure, such as reinstating the worker in the enterprise, the greatest difficulty that the Government faces lies in the fact that, although freedom of association is guaranteed under the Constitution and although the law provides protection from certain violations (as is the case with the Strike Act), anti-union behaviour is not fully recognized as an offence by the national legal system. This prevents the social partners and even the Ministry of Labour and Employment from taking effective preventive and repressive measures to regulate the type of conduct mentioned in the complaint.
3. 461. According to the Government, in an attempt to resolve this issue, it prepared, in the context of the National Labour Forum and together with workers and employers, a proposal for trade union reform which includes a more complete definition of anti-union acts and provides for penalties for offenders, which may be imposed by the Ministry of Labour and Employment. The preliminary draft act on trade union relations (No. 369/05), which is pending the final stages of approval by the National Congress, provides for a number of situations that constitute anti-union behaviour. Any act by employers or workers that is intended to impede or obstruct trade union activities shall be considered as anti-union behaviour and penalties may be imposed on the offender. The Government also sent to the National Congress a proposal on the ratification of Convention No. 158.
4. 462. In any case, in view of the Government’s limited capacity to act in response to situations that clearly flout legislation, as is demonstrated in the present case, the priority of the Government is precisely to formulate legislative proposals which not only extend the rights of workers, but which can also guarantee the effective implementation of those rights. Lastly, the Government indicates that, in the current situation, as described, the worker should seek legal redress so that a decision may be taken by the labour courts to ensure respect for all his rights, which would lead to the reinstatement of the worker in his post. The labour courts of Brazil are playing an increasingly active role in combating this type of behaviour and accordingly the majority of their decisions are consistent with the best interests of workers.

C. The Committee’s conclusions

1. 463. For the purposes of these conclusions and recommendations, a reference to “the company” is a reference to the enterprise FRASLE SA.
2. 464. The Committee observes that, in the present case, the complainant organizations allege that Jorge Antonio Rodríguez, a long-serving official, was dismissed from the company on 27 January 2008 on anti-union grounds. According to the complainant organizations, the dismissal was a penalty for the official’s trade union activity and for his firm stand in defence of workers’ rights.
3. 465. The Committee notes that, according to the Government: (1) it is unbelievable and unacceptable that a trade union official in the exercise of the office entrusted to him by workers – which expired on 5 December 2008 – should have been the victim of a gross violation of the rights guaranteed by the Constitution of Brazil; (2) in accordance with the provisions of Convention No. 98, the Constitution guarantees job security for all trade union officials and their substitutes elected by workers (section 8, paragraph VIII); as the trade union official in question was elected to serve as the chairperson of the union’s financial board, he accordingly enjoyed the guarantee of job security provided under the Constitution; (3) in terms of taking a decisive measure, such as reinstating the worker in the enterprise, the greatest difficulty that the Government faces lies in the fact that, although freedom of association is guaranteed under the Constitution, anti-union behaviour is not fully recognized as an offence by the national legal system and this prevents the Ministry of Labour and Employment from taking effective preventive and repressive measures to regulate the type of conduct mentioned in the complaint; (4) in an attempt to resolve this issue, the Government, together with workers and employers, prepared in the context of the National Labour Forum a proposal for trade union reform (No. 369/05, which is pending the final stages of approval by the National Congress) which includes a more complete definition of anti-union acts and provides for penalties for offenders, which may be imposed by the Ministry of Labour and Employment; (5) in view of the Government’s limited capacity to act in response to situations that clearly flout legislation, as is demonstrated in the present case, the priority of the Government is precisely to formulate legislative proposals which not only extend the rights of workers but also guarantee the effective implementation of these rights; and (6) in the current situation, as described, the worker should seek legal redress so that a decision may be taken by the labour courts to ensure respect for all his rights, which would lead to the reinstatement of the worker in his post.
4. 466. In these circumstances, noting that the Government acknowledges the allegations, and considers them to be a gross violation of the trade union rights guaranteed by the Constitution and a flouting of the legislation, and further noting the Government’s indication that anti-union behaviour is not fully recognized in the national legal system and prevents the social partners and the Ministry of Labour and Employment from taking effective preventive and repressive measures, the Committee requests the Government to take without delay all measures within its power to ensure the reinstatement of Jorge Antonio Rodríguez in the company. The Committee requests the Government to keep it informed in this regard and to indicate whether Jorge Antonio Rodríguez has initiated legal proceedings in connection with his dismissal.
5. 467. Lastly, welcoming the steps taken to adopt a law (proposal for trade union reform) that includes a more complete definition of anti-union acts and provides for penalties for offenders, which may be imposed by the Ministry of Labour and Employment, the Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case relating to the application of Convention No. 98.

The Committee's recommendations

1. 468. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to take without delay all measures within its power to ensure the reinstatement of trade union official Jorge Antonio Rodríguez in the company. The Committee requests the Government to keep it informed in this regard and to indicate whether Jorge Antonio Rodríguez has initiated legal proceedings in connection with his dismissal.
   • (b) Welcoming the steps taken to adopt a law (proposal for trade union reform) that includes a more complete definition of anti-union acts and provides for penalties for offenders, which may be imposed by the Ministry of Labour and Employment, the Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case relating to the application of Convention No. 98.