Report in which the committee requests to be kept informed of development - Report No 354, June 2009

Case No 2656 (Brazil) - Complaint date: 14-APR-08 - Follow-up

Allegations: The complainant organization’s allegations concern acts of anti-union discrimination (refusal to allow union officials access to the workplace, discrimination in personal appraisals, dismissal of a worker, retention of workers as a result of a strike)

1. 243. The present complaint is contained in communications from the Union of Workers in the Petro-Chemical Industries of the State of Paraná (SINDIQUIMICA-PR), dated 14 April and 20 June 2008. In a communication of 17 June 2008, the Single Confederation of Workers (CUT) supported the complaint. The complainant organization SINDIQUIMICAPR sent additional information in a communication of 29 July 2008.
2. 244. The Government sent its observations in a communication of 24 December 2008.
3. 245. 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. 246. In its communications of June 2008, the SINDIQUIMICA-PR makes allegations concerning violations of trade union rights and in particular anti-union acts in the enterprise Fosfértil/Ultrafértil, which is engaged in fertilizer-related activities. Specifically, the complainant organization alleges that the enterprise: (1) prohibits the entry of union officials who wish to talk with the workers (it refers by way of example to the case of Mr Otemio García de Lima); (2) discriminated against union officials Mr Ubirajara de Carvalho and Mr Albino Filla Filho in their personal appraisals; (3) dismissed worker Mr Anselmo Sukewski without cause, because of his friendship with union officials, and (4) harassed union official Mr Luiz Castellano. The complainant organization adds that, in view of the growing instability of working conditions and the lack of respect for workers, a strike was called in January 2008, involving the participation of 95 per cent of workers, during which the right to work of non-strikers was respected. However, the complainant organization alleges that the enterprise engaged in acts of coercion and intimidation and detained workers for 70 hours, forcing them to sleep at the workplace, which led to legal action and the imposition of administrative fines.
2. 247. In its communication of 29 July 2008, the complainant organization alleges that the enterprise has committed further acts of anti-union discrimination since the presentation of the complaint. Specifically, it indicates that, three days after a public hearing was held over the illegal acts committed by the enterprise, a demonstration was held outside the factory on 15 May 2008, organized by various civil society organizations. Days later, the enterprise reported union official Mr Paulo Roberto Fier to the police, holding him responsible for the demonstration and for having threatened the workers who wanted to enter the factory. According to the complainant organization, this was an unjustified act of intimidation, given that the demonstration had been organized by a group of 20 organizations that comprise the committee for the defence of farmers and workers of Fosfértil/Ultrafértil. The complainant organization also alleges that, on 12 June 2008, civil society organizations held another demonstration outside the factory and that, in an attempt to intimidate the workers, the enterprise issued a warning to the unionists Mr Paulo Roberto Fier and Mr Sergio Luiz Monteiro because they did not come in to work on time. The complainant organization states that no workers came in for the morning shift because of the demonstration and because the enterprise had closed its points of entry. Nevertheless, the warning was issued only to workers who had been members of the union’s executive committee.

B. The Government’s reply

1. 248. In its communications dated 24 December 2008, the Government sent the observations of the enterprise in relation to the case, as well as a written undertaking entered into by the enterprise Fosfértil/Ultrafértil and the Office of the Public Prosecutor for Labour on 19 November 2008.
2. 249. In its communication, the enterprise refers to its history, its integration into the domestic market and its human resources policy in terms of development, pay, benefits and quality of life. Likewise, the enterprise indicates with regard to its policy on trade union relations that it: (1) has a perfect understanding of the duality of the relationship between labour and capital and the importance of maintaining an ongoing high-level dialogue with the trade unions; (2) respects the dignity of its workers, the social values of work and the exercise of free enterprise; (3) has favoured a policy that recognizes the importance of unions and their officials; (4) has reached three collective agreements over the years, and in 16 years of intense relations with the union there have been no disputes that have required recourse to justice; (5) proportionately, probably has the highest rate of affiliation in Brazil; and (6) has respected and recognized the legitimacy of unions, their officials and members and there has been a union official on the board of the enterprise since 1993.
3. 250. As to the allegations presented in this case, the enterprise indicates that: (1) it did not refuse the union officials entry to the industrial estate, as is demonstrated by the log book recording the entry of union officials to the industrial estate, and the enterprise made a proposal to the Office of the Public Prosecutor for Labour to enter into an agreement on conduct in this regard, before it knew about the complaint; (2) it never acted in a discriminatory way with regard to the appraisal of trade union officials. Although one of the enterprise’s supervisors incorrectly conducted five performance appraisals, the employees were informed in writing that these appraisals would not be taken into account and the supervisor had been sent on a retraining course; (3) no punitive measures are taken against union officials for exercising trade union activities. The significant number of unionized workers and union officials is proof of this. There has only been one case where, during a dismissal interview, a supervisor indicated that the employee was a trade union activist. The supervisor was issued with a warning by the enterprise and no further cases of this kind have been recorded; (4) no acts of intimidation have been carried out against a union official. For medical reasons, it was recommended that the person in question should leave the areas that were at risk – this had nothing to do with trade union politics; and (5) striking workers were never held. The enterprise had planned to carry out some general maintenance work in January 2008 and had therefore called on workers from other plants and had put them up in hotels in the city of Araucaria. These workers were used to meet emergency service requirements and they were never shut in. The complainant organization knew that the maintenance work would be carried out, but it still called the strike. The enterprise recognizes the right to strike, but requires the presence of a skeleton staff to ensure the safety of workers and the community. The enterprise states that it has not violated any international Conventions and that respect is shown for environmental and occupational health issues.
4. 251. Finally, the enterprise reports that, before submitting the complaint to the Committee, the complainant organization lodged a similar complaint with the Office of the Public Prosecutor for Labour, which led to Investigation No. 560/2006. Within the context of this procedure, the enterprise signed a written undertaking (mentioned above) in which it made a public commitment to refrain from any anti-union acts.
5. 252. In the written undertaking, the enterprise makes a commitment among other things: (1) to handle all complaints using the existing institutional mechanisms (ethics committee and union representation together with the Board of Directors), take decisions regarding the prevention and/or elimination of harassment, and handle complaints discreetly, ensuring that the complainant and witnesses are not subjected to acts of repression as a result of the claim; (2) to ensure that information is made widely available within the enterprise, by putting notices on the walls, on the mechanisms that are in place to receive complaints of harassment; (3) to refrain from any discriminatory conduct that violates the right to equality, prohibiting the consideration of whether or not a worker is a member of a union or has links with a union as a factor in the evaluation or promotion of employees, or as a justification for dismissal; (4) to refrain from relocating/transferring employees, even within the same establishment, under the pretext of punishment or isolation; (5) to refrain from carrying out acts that constitute coercion or the curtailment of freedom of association, allowing union officials access to the enterprise at least once a week, by agreement with the union, and adhering to occupational safety rules; (6) to refrain from asking that a specific reason be provided for the union visits, taking into account that the union may simply be interested in contacting the workers without a prior specific reason; (7) to allow dialogue between the workers and union officials to take place without a representative of the enterprise being present, in communal areas on the premises but away from the areas in which the work is carried out, in order to avoid occupational safety hazards; (8) the signature of the agreement does not imply any acknowledgement with regard to the complaints that have been filed; (9) for breach of the obligations provided for in the undertaking, the enterprise must pay a fine of 20,000 Brazilian reais, duly adjusted; and (10) the undertaking is subject to inspection by the regional labour inspectorate and/or the Office of the Public Prosecutor for Labour.

C. The Committee’s conclusions

1. 253. The Committee observes that, in the present case, the complainant organization alleges that various violations of trade union rights took place in the enterprise Fosfértil/Ultrafértil, and in particular that the enterprise: (1) prohibits the entry of union officials who wish to talk with the workers (it refers by way of example to the case of Mr Otemio García de Lima); (2) discriminated against union officials Mr Ubirajara de Carvalho and Mr Albino Filla Filho in their personal appraisals; (3) dismissed worker Mr Anselmo Sukewski without cause, because of his friendship with union officials; and (4) harassed union official Mr Luiz Castellano; (5) during a strike in January 2008, held workers for 70 hours, forcing them to sleep at the workplace, which led to legal action and the imposition of administrative fines; and (6) reported union official Mr Paulo Roberto Fier to the police, holding him responsible for a demonstration on 15 May 2008 and for having threatened the workers who wanted to enter the factory, and issued a warning to the unionists Paulo Roberto Fier and Sergio Luiz Monteiro because they did not come in to work on time because of a demonstration that was held on 12 June 2008, during which the enterprise had closed its points of entry.
2. 254. The Committee notes that the Government sent a detailed communication from the enterprise indicating in relation to the allegations that: (1) it did not refuse the union officials entry to the industrial estate, as is demonstrated by the log book recording the entry of union officials to the industrial estate, and the enterprise made a proposal to the Office of the Public Prosecutor for Labour to enter into an agreement on conduct in this regard, before it knew about the complaint; (2) it never acted in a discriminatory way with regard to the appraisal of trade union officials. Although one of the enterprise’s supervisors incorrectly conducted five performance appraisals, the employees were informed in writing that these appraisals would not be taken into account and the supervisor has been sent on a retraining course; (3) no punitive measures are taken against union officials for exercising trade union activities. The significant number of unionized workers and union officials is proof of this. There has only been one case where, during a dismissal interview, a supervisor indicated that the employee was a trade union activist. The supervisor was issued with a warning by the enterprise and no further cases of this kind have been recorded; (4) no acts of intimidation have been carried out against a union official (allegations of the harassment of Mr Luiz Castellano). For medical reasons, it was recommended that the person in question should leave the areas that were at risk – this had nothing to do with trade union politics; and (5) striking workers were never detained. The enterprise had planned to carry out some general maintenance work in January 2008 and had therefore called on workers from other plants and had put them up in hotels in the city of Araucaria. These workers were used to meet emergency service requirements and they were never shut in. The complainant organization knew that the maintenance work would be carried out but still called the strike.
3. 255. In this regard, the Committee notes that, according to the Government, on 19 November 2008, the enterprise and the Office of the Public Prosecutor for Labour signed a written undertaking in which the enterprise made a commitment among other things: (1) to handle all complaints using the existing institutional mechanisms (ethics committee and union representation together with the Board of Directors), take decisions regarding the prevention and/or elimination of harassment, and handle complaints discreetly, ensuring that the complainant and witnesses are not subjected to acts of repression as a result of the claim; (2) to ensure that information is made widely available within the enterprise, by putting notices on the walls, on the mechanisms that are in place to receive complaints of harassment; (3) to refrain from any discriminatory conduct that violates the right to equality, prohibiting the consideration of whether or not a worker is a member of a union or has links with a union as a factor in the evaluation or promotion of employees, or as a justification for dismissal; (4) to refrain from relocating/transferring employees, even within the same establishment, under the pretext of punishment or isolation; (5) to refrain from carrying out acts that constitute coercion or the curtailment of freedom of association, allowing union officials access to the enterprise at least once a week, by agreement with the union, and adhering to occupational safety rules; (6) to refrain from asking that a specific reason be provided for the union visits, taking into account that the union may simply be interested in contacting the workers without a prior specific reason; (7) to allow dialogue between the workers and union officials to take place without a representative of the enterprise being present, in communal areas on the premises but away from the areas in which the work is carried out, in order to avoid occupational safety hazards; (8) the signature of the agreement does not imply any acknowledgement with regard to the complaints that have been filed; (9) for breach of the obligations provided for in the undertaking, the enterprise must pay a fine of 20,000 Brazilian reais, duly adjusted; and (10) the undertaking is subject to inspection by the regional labour inspectorate and/or the Office of the Public Prosecutor for Labour.
4. 256. The Committee understands that the written undertaking has brought an end to the dispute. Finally, the Committee notes that no information has been supplied in relation to the allegation that union official Mr Paulo Roberto Fier was reported to the police as he was considered to be responsible for a demonstration outside the factory on 15 May 2008 and for having threatened the workers who wanted to enter the factory. The Committee cannot determine whether the provisions of paragraph 1 of the written undertaking have led to the withdrawal of the complaint and requests the Government to inform it in that regard. Should the complaint not have been withdrawn, the Committee requests the Government to keep it informed about the status of the complaint and about whether legal proceedings have been initiated.

The Committee's recommendations

1. 257. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee takes note of the agreement between the enterprise mentioned in paragraph 253 and the Office of the Public Prosecutor for Labour bringing an end to the dispute which gave rise to the present complaint.
   • (b) The Committee requests the Government to keep it informed of whether the complaint made to the police against union leader Mr Paulo Roberto Fier has been withdrawn under the written undertaking that the company, as mentioned in paragraph 253, signed with the Office of the Public Prosecutor for Labour and, if not, to keep it informed about the status of the complaint and about whether legal proceedings have been initiated.