Report in which the committee requests to be kept informed of development - Report No 362, November 2011

Case No 2795 (Brazil) - Complaint date: 15-JUN-10 - Closed

Allegations: The complainant organization alleges that the São Paulo State Court of Justice refuses to negotiate the demands presented by the Union of Judiciary Employees of São Paulo State (SUSPJESP) and also objects to the decision by the judicial authority in the context of a “dissidio coletivo” (arbitration) procedure requested by SUSPJESP in relation to a strike

1. 316. The General Union of Workers (UGT) presented a complaint in a communication of 15 June 2010.
2. 317. Since there has been no reply from the Government, the Committee has been obliged to postpone its examination of the case on two occasions. At its meeting in May–June 2011 [see 360th Report, para. 5], the Committee made an urgent appeal to the Government indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body (1972), it could present a report on the substance of the case at its next meeting, even if the requested information or observations had not been received in time. To date, no information has been received from the Government.
3. 318. 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), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 319. In its communication of 15 June 2010, the UGT indicates that for more than two years, the Union of Judiciary Employees of São Paulo State (SUSPJESP) has, without success, been presenting demands concerning a wage review to the São Paulo State Court of Justice and the Government of São Paulo State. The UGT indicates that, under these circumstances, on 28 April 2010, judicial staff had no alternative but to resort to strike action. By going on strike, the public servants are trying to alert the Government and the State Court of Justice of the need to give immediate effect to Act No. 12177/2004, which provides for the consideration on 1 March every year of all demands with financial implications.
2. 320. The UGT indicates that, in May 2010, SUSPJESP filed a request for dissidio coletivo (arbitration) before the Special Body of the São Paulo State Court of Justice in relation to a strike and on that occasion the judicial authority violated the decisions of the Committee on Freedom of Association in that regard, by: (1) establishing that “absences due to the participation of Court of Justice officials in strike action will result in deductions, without the possibility of compensation, from pay or from calculations relating to length of service or any other benefit”; (2) confirming “the ban on exercising the right to strike of public servants whose duties relate to the maintenance of public order and security or the administration of justice and of career state employees”; and (3) providing that “the union must refrain from promoting the total or partial stoppage of the activities carried out by the workers it represents, from the time of the notification of the decision, under penalty of a fine of 100,000 reais (BRL) per day, and the union and its officials are ordered, collectively, not to initiate other strikes before a final ruling is made with regard to the present arbitration procedure”.

B. The Committee’s conclusions

1. 321. The Committee deplores the fact that, despite the time which has elapsed since the presentation of the complaint, the Government has not sent its reply concerning the allegations presented by the complainant organization, although it has been invited on several occasions, including by means of an urgent appeal, to present its comments and observations on the case.
2. 322. Under these circumstances and in accordance with the applicable procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee finds itself obliged to present a substantive report on the case without being able to take into account the information it has sought from the Government.
3. 323. The Committee recalls that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating, for objective examination, detailed replies concerning allegations made against them. The Committee expects the Government to be more cooperative in future.
4. 324. The Committee observes that, in the present case, the complainant organization alleges that the São Paulo State Court of Justice refuses to negotiate the demands presented by the SUSPJESP and also objects to the decision by the judicial authority in the context of a “dissidio coletivo” (arbitration) procedure requested by the SUSPJESP in relation to a strike, under which it was decided that strike days would be deducted and the union was ordered not to call further strikes until a final ruling is handed down by the judicial authority in relation to the arbitration procedure.
5. 325. With regard to the alleged refusal by the São Paulo State Court of Justice to negotiate the demands presented by the SUSPJESP, the Committee recalls that Brazil has ratified the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154), which provides in its Article 1 that it applies to all branches of economic activity and that, as regards the public service, special modalities of application of the Convention may be fixed by national laws or regulations or national practice. Under these circumstances, the Committee urges the Government to immediately take all measures within its power to promote collective bargaining between the SUSPJESP and the authorities concerned, so that, taking into account the special modalities for the application of Convention No. 154, the public servants of the sector may exercise the right to collective bargaining. The Committee urges the Government to report on any measures taken in this regard.
6. 326. With regard to the contested decision by the judicial authority, which was adopted in the context of an arbitration request by SUSPJESP, under which it was decided that the strike days would be deducted and which called on the union not to call further strikes until a final ruling is handed down by the judicial authority in relation to the arbitration procedure, the Committee recalls that it has underlined, on numerous occasions, that “salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 654], and that in a context of voluntary arbitration, the fact that further industrial action cannot be taken until a final ruling is handed down is not contrary to the principles of freedom of association. Under these circumstances, the Committee will not pursue its examination of these allegations.

The Committee's recommendations

1. 327. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee urges the Government to immediately take all measures within its power to promote collective bargaining between the SUSPJESP and the authorities concerned, so that, taking into account the special modalities for the application of Convention No. 154, the public servants of the sector may exercise the right to collective bargaining. The Committee urges the Government to report on any measures taken in this regard.