Report in which the committee requests to be kept informed of development - Report No 365, November 2012

Case No 2858 (Brazil) - Complaint date: 02-MAR-11 - Closed

Allegations: the complainant organization alleges acts of anti-union discrimination against its trade union officials in different Brazilian states

1. 262. The complaint is contained in a communication from the National Federation of Federal Police Officials (FENAPEF) dated 2 March 2011. The FENAPEF sent further information in communications dated 12 July and 11 August 2011.
2. 263. The Government sent its observations in communications dated 26 June, 26 August and 7 October 2011 and 5 June 2012.
3. 264. 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), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 265. In its communications dated 2 March, 12 July and 11 August 2011, the FENAPEF indicates that it groups together 27 state trade unions, and represents over 15,000 workers at all levels of the federal police. The FENAPEF alleges that the institution’s management carry out acts of persecution aimed at restricting the exercise of trade union activity by the representatives of federal police employees.
2. 266. Specifically, the FENAPEF alleges that administrative disciplinary proceedings were initiated and a police investigation opened against the organization’s Communications Director, Mr Josias Fernandes Alves, federal police officer. The complainant states that the official in question has been in post for almost 15 years and that he has never been subject to a disciplinary action.
3. 267. The FENAPEF alleges that at the end of 2010, the first disciplinary action was instigated against the aforementioned trade union official because of an article published on the organization’s website in which criticisms were made about the selection process of a National Police Academy competitive examination (the trade union official was penalized with two days’ suspension, which was completed on 8 and 9 August 2011). The complainant adds that, for the same misdemeanour, the launch of a police investigation was ordered into the alleged commission of the “offence of insult and defamation” and legal proceedings instigated for moral damages by the trade union official (the complainant reports that both actions were declared inadmissible by the Special Civil Court No. 2 of Brasilia). The complainant states that, by order of the Federal Police Regional Superintendant in Minas Gerais, further disciplinary proceedings were initiated against the same trade union official at the beginning of February 2011, for participating in a meeting of the trade union organization in Brasilia.
4. 268. The FENAPEF indicates that provisions of Act No. 4878/65 of 1965 on the legal regime governing federal district federal and civil police officers were invoked in the aforementioned disciplinary proceedings. According to the complainant, this legislation was used to satisfy personal whims of the administrators, clearly aiming to restrict the exercise of freedom of association, freedom of demonstration and freedom of thought. The complainant states that the Act was adopted during the last dictatorship and that a number of its provisions violate the Constitution.
5. 269. The FENAPEF adds that the President of the Union of Federal Police Officers of the State of Bahía, Ms Rejane Peres Teixeria, was also subjected to acts of anti-union persecution and that in that context, the Regional Superintendence of the Federal Police of Bahía initiated three administrative disciplinary proceedings against her because of a press interview in which she referred to defects in weapons acquired by the institution. She was charged with failing to obey a police assignment order and being absent from duty in order to participate in trade union events without the authorization of management. In that connection, the FENAPEF states that there is an obvious need for officials, in carrying out their trade union activities, to participate in meetings in various cities where unionized police officers work, but that Ms Peres Texeira always asked permission from her immediate superior and expressed her willingness to make up time for any absences from duty (the complainant states that these facts were reported to the Federal Public Ministry and that a habeas corpus petition was filed in the Federal Court of Bahía).
6. 270. The FENAPEF also alleges the following acts of anti-union discrimination:
   • – the initiation of administrative disciplinary proceedings by the Federal Police authorities in Brasilia against Mr Julio Gomes de Carvalho Junio, an officer of the Union of Federal Police Officers of the Federal District (SINDIPOL/DF) in 2010, for publishing an article containing criticisms of the management of the institution’s Operational Aviation Coordination;
   • – the initiation of administrative disciplinary proceedings by the Regional Superintendence of the Federal Police Department of Paraiba against Mr Francisco Leodecio Neves, Deputy Director of the Union of Federal Police Officers of Paraiba in 2011, for writing an article criticizing investigation methods in Brazil;
   • – the initiation of disciplinary proceedings against Mr Paulo Pimenta, Vice-President of the Union of Federal Police Officers of Acre in 2009, for writing an article on the website of the FENAPEF (this official resigned after disciplinary proceedings were initiated because of the harassment he was subjected to); and
   • – the initiation of disciplinary proceedings in which the penalty of dismissal was imposed on Mr José Pereira Orihuela, President of the Union of Federal Police Officers of Roraima in 2004, because he requested illegally stored explosives to be removed in an area under the supervision of the Federal Police Department of Roraima (FENAPEF reports that a lawsuit seeking reinstatement was initiated seven years ago).
7. 271. The FENAPEF notes that it is regrettable that an attitude of political persecution persists towards trade union officials within the authorities of the institution and that there is a failure to apply Convention No. 151 ratified by Brazil, or the police human rights “Directive” (guideline). According to the complainant, democratization of the federal police is needed to enable employees to fully exercise their citizenship rights, which is unfortunately still not the case.

B. The Government’s reply

1. 272. In its communication dated 26 June 2011, the Government states that a draft bill on anti-union acts is being prepared and that the text is under discussion between the Ministry of Labour and Employment’s team and the trade union leadership’s Combat Command for anti-union practices, which aims to combat anti-union acts in the public and private sectors. The legal text on the subject will prevent and combat acts that violate the exercise of freedom of association.
2. 273. Regarding the adequacy of Act No. 4878/65 of 1965, the Government states that, since it is a matter for the Ministry of Justice, it has been forwarded to it for any comments it may deem appropriate. Meanwhile, the Ministry of Labour and Employment (MTE) is willing to collaborate on conducting studies on the provisions that may not be in conformity with the new constitutional order. The Government adds that the MTE provides mediation services in labour disputes through the Labour Relations Secretariat.
3. 274. In its communications dated 26 August and 7 October 2011, and 5 June 2012, the Government states that it is first important to note that article 8 of the Federal Constitution guarantees the right to form professional or trade union associations and that this freedom encompasses not only the right to form unions and join or leave them, but also the exercise of trade union activities in the broadest sense. In this context, in order to protect the efficient performance of trade union activities, the legislative system sought to protect this activity through the creation of mechanisms to prohibit anti-union conduct (the Government reiterates the comments made in its earlier communication with respect to the ongoing discussions on the adoption of specific legislation in that regard). As for the public sector, article 37(VI) of the Federal Constitution guarantees freedom of association in that sector. The guarantees granted to trade union officials in the public sector differ from those granted to the private sector and are governed by different regulations. The Government states that, in order to reduce the differences between the public and private sectors, Convention No. 151, which was ratified by Brazil, was adopted. Following ratification, measures were adopted and discussions undertaken within the Executive to draft bills to regulate the matter; for example, issues such as trade union organization in the sector, trade union leave and combating anti-union acts were discussed.
4. 275. The Government maintains that, despite the absence of a legal standard dealing with the subject in detail, the Federal Constitution provides mechanisms to protect workers and trade union organizations, in particular through the principle of non-state intervention in trade union organizations. Thus, any acts aimed at impeding the free exercise of trade union activity must be investigated and punished through actions taken by public institutions such as the Public Ministry of Labour and the Judiciary.
5. 276. The Government states that, with respect to the allegations, there are legal means at the national level to resolve the alleged wrongdoings. The Government explains that in administrative disciplinary proceedings the principles of due process are respected, they do not have the force of res judicata and the outcome may be appealed in the courts. The Government underlines that it considers any anti-union act to be harmful and punishable and thus it is undertaking to develop, within the framework of a tripartite discussion, legislation establishing which anti-union acts are liable to punishment.

C. The Committee’s conclusions

1. 277. The Committee observes that in this case the FENAPEF alleges that in carrying out trade union activities several of its officials suffered acts of anti-union discrimination by the police authorities. Specifically, the FENAPEF alleges: (1) the initiation of administrative disciplinary proceedings (a penalty of two days’ suspension was imposed) and a police investigation into the alleged commission of the offences of insult and defamation against the organization’s Communications Director, Mr Josias Fernandes Alves; (2) the initiation of three administrative disciplinary proceedings against the President of the Union of Federal Police Officers of the State of Bahía, Ms Rejane Peres Teixera (according to the FENAPEF a petition for habeas corpus was filed in relation to this case); (3) the initiation of administrative disciplinary proceedings against Mr Julio Gomes de Carvalho Junio, an officer of the SINDIPOL/DF in 2010; (4) the initiation of administrative disciplinary proceedings against Mr Francisco Leodecio Neves, Deputy Director of the Union of Federal Police Officers of Paraiba in 2011; (5) the initiation of disciplinary proceedings against Mr Paulo Pimenta, Vice-President of the Union of Federal Police Officers of Acre in 2009; and (6) the initiation of disciplinary proceedings in which the penalty of dismissal was imposed on Mr José Pereira Orihuela, President of the Union of Federal Police Officers of Roraima in 2004 (according to FENAPEF, a lawsuit seeking reinstatement was initiated seven years ago).
2. 278. The Committee notes that the Government states the following: (1) article 8 of the Federal Constitution guarantees professional or trade union freedom of association and that this freedom encompasses not only the right to form unions and join or leave them, but also the exercise of trade union activities in the broadest sense; (2) in order to protect the efficient performance of trade union activities, the legislative system sought to protect this activity through the creation of mechanisms to prohibit anti-union conduct; (3) as for the public sector, article 37(VI) of the Federal Constitution guarantees free trade union association in that sector; (4) a draft bill on anti-union acts is being prepared and the text is under discussion between the Ministry of Labour and Employment’s team and the trade union leadership’s Combat Command for anti-union practices, which aims to combat anti-union acts in the public and private sectors and the legal text on the subject will prevent and combat acts that violate the exercise of freedom of association; (5) the Federal Constitution provides mechanisms to protect workers and trade unions, in particular through the principle of non-state intervention in trade union organizations, thus any acts aimed at impeding the free exercise of trade union activity must be investigated and punished through actions taken by public institutions such as the Public Ministry of Labour and the Judiciary; (6) with respect to the allegations, there are legal means at the national level to resolve the alleged wrongdoings; (7) the Government explains that in administrative disciplinary proceedings the principles of due process are respected, they do not have the force of res judicata and the outcome may be appealed in the courts; and (8) the Government underlines that it considers any anti-union act to be harmful and punishable and thus it is undertaking to develop, within the framework of a tripartite discussion, legislation establishing which anti-union acts are liable to punishment.
3. 279. First of all, while taking due note that the Government, on a tripartite basis, proposes to develop a draft bill to prevent, investigate and combat anti-union activities, the Committee expects that the draft bill in question will shortly be submitted to the Executive and recalls that, if it so wishes, it can make use of ILO technical assistance in this process. The Committee requests the Government to keep it informed thereof. The Committee invites the Government to take into account the principle according to which the right to express opinions through the press or otherwise is an essential aspect of trade union rights [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 155].
4. 280. With regard to the specific alleged acts of anti-union discrimination against the six union officials, the Committee regrets that the Government has merely stated that the administrative disciplinary proceedings may be appealed in the courts and they respect the principles of due process. The Committee therefore requests the Government to report on the outcome of the administrative disciplinary proceedings concerning five trade union officials and whether appeals have been lodged in this regard. The Committee also regrets the delay in the reinstatement proceedings initiated seven years ago by the official Mr José Pereira Orihuela, President of the Union of Federal Police Officers of Roraima and requests the Government to keep it informed of the outcome of this case.

The Committee’s recommendations

1. 281. In light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that the draft bill on anti-union discrimination will shortly be submitted to the Executive and recalls that, if it so wishes, it can make use of ILO technical assistance in this process. The Committee requests the Government to keep it informed thereof.
   • (b) The Committee requests the Government to inform it about the outcome of the administrative disciplinary proceedings concerning five union officials and whether appeals have been lodged in this regard. The Committee also regrets the delay in the reinstatement proceedings initiated seven years ago by the official Mr José Pereira Orihuela, President of the Union of Federal Police Officers of Roraima and requests the Government to keep it informed of the outcome of this case.