Informe provisional - Informe núm. 316, Junio 1999

Caso núm. 1992 (Brasil) - Fecha de presentación de la queja:: 31-AGO-98 - Cerrado

Allegations: Dismissals following a strike and other anti-union acts

1. 130. The complaint in this case was submitted in a communication from the Single Central Organization of Workers (CUT) dated 31 August 1998. The Government sent its observations in a communication dated 23 February 1999.
2. 131. Brazil has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); however, it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 132. In its communication dated 31 August 1998, the Single Central Organization of Workers (CUT) states that the workers of the Brazilian Post and Telegraph Enterprise (ECT) -- a federal public enterprise -- are represented by more than two dozen workers' unions and one national federation. The complainant indicates that 1 August was fixed as the date for signing the annual renewal of the collective agreement in the enterprise, and that during negotiations relating to the renewal of the collective agreement for the period 1997-98, the enterprise rejected the workers' claims; as a result they decided to take strike action which lasted 21 days. According to the CUT, during the negotiations, and during and following the strike, the Government and the enterprise committed a number of acts of anti-union discrimination. More specifically, the complainant makes the following allegations:
   • -- once the strike was over, a policy of reprisals was unleashed against the workers who had taken part in it. More than 1,500 workers were dismissed, including just over 300 trade union officials and members of internal accident prevention committees;
   • -- despite the end of the work stoppage at the enterprise, the trade union leaders were refused access to the workplace;
   • -- in a number of workplaces, the regional director of the Brazilian Post and Telegraph Enterprise in the State of Rio de Janeiro screened a video containing false information about the trade union and the strike;
   • -- restrictions were placed on trade union leaders being freed from their professional obligations to exercise their trade union activities;
   • -- the enterprise published a Manual of Trade Union Relations, which incites directors to commit various anti-union practices with the aim of discrediting the trade unions and creating a tense atmosphere between the trade unions, the enterprise and the workers; the complainant attaches a copy of the manual and points out the provisions relating to the following issues:(i) contingency plan: "this is a managerial instrument (an administrative tool) which, when used correctly, will harmonize the enterprise's actions, so as to make provision for and minimize the direct and indirect effects of strike action and its repercussions in the present and the future"; (ii) threats to family members: "involve the family in the enterprise's communication process -- spoken and written, country, spouses --". According to the complainant, this aims to demonstrate to possible supporters of the strike the inadvisability of participating in it; (iii) exemplary punishment: "discipline must be maintained in the enterprise. It is recommended to act carefully when applying disciplinary measures so that excessive or liberal measures do not prejudice the hierarchy. In short, fairness and firmness in disciplinary measures, when they are necessary. Footnote: Ideally, disciplinary measures should serve as an example"; and (iv) excessive police presence: "confirm with the responsible officials already designated in the regional contingency plan in order to carry out: security measures ...". The complainant alleges that despite the fact that the enterprise has its own security team, during the September 1997 strike the Military Police's Riot Squad was present with heavy weaponry.

B. The Government's reply

1. 133. In its communication dated 23 February 1999, the Government states that on 26 June 1997 the Brazilian Post and Telegraph Enterprise (ECT) received a long list of demands from the National Federation of Workers of Post and Telegraph and Similar Enterprises (FENTECT), which included a request for a 21.39 per cent wage rise, an increase of over 5 per cent in real terms. On 28 August 1997 the enterprise in response proposed that the previous agreement be extended and a wage increase in keeping with the country's economic policy and the labour market, without prejudice to continuing negotiations on this matter. The enterprise subsequently put a new proposal on the negotiating table which granted a 5 per cent increase for staff occupying the positions of letter carrier, sorter, driver, etc., who make up 85 per cent of the enterprise's staff, meanwhile maintaining an increase of 2 per cent for operating staff. The Government indicates that although negotiations were under way, the trade unions affiliated to FENTECT went on strike without justification and in violation of the negotiation process, a strike that as the CUT itself admitted lasted 21 days. Continuing in the spirit of conciliation, the enterprise received FENTECT on 11 September 1997 and submitted its final proposal which consisted of maintaining the increase in benefits and supplementing them with a voucher for 200 reales for each employee.
2. 134. The Government indicates that the efforts made by the enterprise to bring the negotiations to a successful conclusion were not sufficient for an agreement to be reached. Dissatisfied with the situation and in accordance with the basic rules governing any negotiations, the enterprise had no alternative but to withdraw its proposal and make the resumption of negotiations conditional upon the end of the strike. The enterprise's position was entirely in keeping with the most basic democratic principles given that the strike, as well as not being representative of the wishes of the majority of workers, seriously inconvenienced clients and workers who wanted to work, not to mention the financial losses involved or the negative publicity that a strike entails for the postal service.
3. 135. The actions of the trade union organizations concerned were contrary to the legislation concerning strikes, in particular as regards the authorization given by assemblies which cannot declare strike action without giving notice, a requirement which is not met by simply communicating the possibility of strike action in lieu of the requirements and procedures stipulated in Act No. 7783/94. The Strike Act provides as follows: "Article 3. If negotiations fail or if it is found to be impossible to have recourse to arbitration, a collective work stoppage is permitted. The corresponding employing body or its employees directly involved will be notified a minimum of 48 hours before the work stoppage. Article 4. The corresponding trade union organization shall convene, in the manner provided in its by-laws, a general assembly which will define the claims of the category and will discuss the collective stoppage of services. Clause 1. The by-laws of the trade union organization should make provision for the formalities relating to calling the assembly and the quorum for deliberating, and concerning commencing and ending the strike."
4. 136. Given that this was a strike disapproved of by the enormous majority of workers in the enterprise, the leaders of the trade unions affiliated to the workers' federation, anticipating the fragility of the movement, threatened violent pickets and forced entry into work premises, threats that were confirmed with acts of violence and vandalism in a number of units in the enterprise. In response to this situation the enterprise lodged an application for an injunction. The judicial authorities ordered that the Trade Union of Workers of the Brazilian Post and Telegraph Enterprise and Other Similar Enterprises of Ribeirao Preto and Regiao should refrain from any and all activities aimed at restricting or preventing the entry or exit of the public and/or officials to and from the premises of the ECT enterprise, in administrative, operational or service roles, ensuring the right of the workers who want to exercise their activities as usual, and also the general public, the freedom to come and go necessary for the movement of postal traffic. The Government states that entirely ignoring the Strike Act and the injunction, the strikers committed acts of violence and vandalism including damage to public property, offences against employees, enterprise management and users, physical assault against employees and violation of public premises.
5. 137. In view of the serious misdemeanours committed, the enterprise, basing itself on the applicable legislation, particularly the Strike Act, dismissed 157 striking workers with just cause. In view of its clearly illegal acts, on 23 September 1997 FENTECT found itself obliged to declare the strike over and requested the enterprise to resume negotiations, a request that was quickly complied with. Showing its tolerance and readiness for dialogue, the enterprise increased its offer, including to re-examine within 20 days, following the signature of the collective agreement, the dismissals carried out during the strike; and to give a basket of basic foodstuffs to the employees who participated in the strike if they returned to work and if the agreement was signed by 30 September 1997. The trade union representatives rejected the agreement on 1 October 1997 and in a final attempt to avoid the involvement of the judiciary to settle the matter of the collective dismissal, the enterprise informed FENTECT that it would give it until 17 October 1997 to decide on the matter, receiving by way of reply the summons to further assemblies to establish the timetable for another strike scheduled for the beginning of December 1997. According to the Government, the claim that the ECT enterprise committed acts in violation of international standards ratified by Brazil is false.
6. 138. Regarding the publication of a manual concerning anti-union practices, the Government notes that the manual summarizes a series of guidelines aimed at achieving good relations between employees and employers in the trade union sphere. The Government adds that the manual in question is no longer in use as it has been improved upon and updated by a set of more modern standards.
7. 139. The Government also points out that the video referred to by the CUT shows the aggressiveness of the trade union leaders during the 1997 strike, and that the violence cannot be denied because the perpetrators can be clearly seen on the video.
8. 140. The Government adds that the allegation whereby at the end of the strike the enterprise began a campaign of reprisals against the strikers and that the authorities engaged in a massive dismissal of the strikers is untrue. According to the Government, this is evidenced by a document signed by the members of the national committee for negotiations between the FENTECT and the ECT, consisting of the minutes of the meeting dated 14 November 1997 which includes the following entry as regards the collective labour agreement for 1997-98: the strikers who were absent from their workstations for over 15 days during the September strike shall receive, together with the November basket, the basket of basic foodstuffs to which they would have lost their entitlement under usual circumstances, recovering that entitlement by virtue of the agreement between the parties; and the enterprise undertakes to re-examine the dismissals for just cause that took place during the September 1997 strike within a period 20 days following the signing of the document containing the approval and acceptance of the basis of the collective agreement. As each re-examined dismissal is cancelled, the person concerned will be reinstated. The dismissals that are not rescinded may be re-examined if new facts or unexamined proof appear.
9. 141. The Government declares with respect to the allegation that 1,500 workers were dismissed, including 300 trade union leaders, that the enterprise reviewed the dismissals of all the workers dismissed for just cause, which numbered no more than 157. Of these, 103 were reinstated, leaving the number of dismissed workers at 54. Finally, the Government explains that the dismissals mentioned by the CUT (over 1,500) were contractual rescissions that occurred approximately halfway through 1997, that is, prior to the strike in September 1997.

C. The Committee's conclusions

1. 142. The Committee observes that the allegations in this case relate to a collective dispute between the Brazilian Post and Telegraph Enterprise and the National Federation of Workers of Post and Telegraph and Similar Enterprises (FENTECT) which led to, during the negotiation of a collective agreement and following the holding of a strike, the massive dismissal of strikers (1,500 workers including, according to the complainant, 300 trade union leaders or representatives). Also, the Committee notes the complainant's allegations that the enterprise in question: (i) screened a video containing false information relating to the trade union and the strike; (ii) is not allowing the trade union leaders access to the workplace and is placing restrictions on freeing trade union leaders from their professional obligations in order to exercise their trade union activities; and (iii) published a manual on labour relations that contained anti-union provisions.
2. 143. As regards the massive dismissal of strikers following a strike against the background of negotiating a collective agreement, the Committee notes the Government's statements that: (1) despite the fact that negotiations were under way, the trade unions affiliated to FENTECT began unjustified strike action, violating the negotiation process; (2) the enterprise's efforts to achieve a successful outcome to the negotiations did not prove sufficient for an agreement to be reached and, dissatisfied with the situation and in accordance with the basic rules of any negotiations, the enterprise had no alternative but to withdraw its proposal and make the resumption of negotiations conditional on the strike coming to an end; (3) the actions of the trade union organizations concerned were contrary to legislation governing strikes, particularly as regards the authorization given by assemblies that cannot declare strike action without giving legal notice, a requirement which is not met by simply communicating the possibility of strike action in lieu of the requirements and procedures stipulated in Act No. 7783/94; (4) the strikers committed acts of violence and vandalism, including damage to public property, offences against employees, enterprise management and users, physical assault against employees and forced entry into public property; (5) given the serious misdemeanours committed, the enterprise dismissed with just cause 157 striking workers; (6) in the framework of the collective agreement for 1997-98 concluded in November 1997, it was provided that the enterprise would undertake to re-examine the dismissals that occurred during the September 1997 strike within a period of 20 days from the signature of the document containing the approval and acceptance of the basis for the collective agreement; as each re-examined dismissal was cancelled, the person concerned would be reinstated; and the dismissals that were not rescinded could be re-examined if new facts or unexamined proof appeared; (7) the enterprise reviewed the dismissals, of which there were no more than 157, and 103 of these workers were reinstated, leaving the total number of dismissals at 54; and (8) the dismissals mentioned by the CUT (over 1,500) concerned contractual rescissions that occurred approximately halfway through 1997, that is, before the strike of September 1997.
3. 144. The Committee notes that the Government denies that 1,500 dismissals took place, while acknowledging that in the framework of a strike held at the end of September 1997 150 strikers were dismissed and emphasizing that the trade unions that declared the strike did not respect the legal period of notice and that the dismissed workers committed acts of violence and vandalism, including damage to public property, offences against employees, enterprise management and users, physical assault against employees and forced entry into public property.
4. 145. The Committee observes with interest that following the dispute, the parties concluded a collective agreement for 1997-98 in which the enterprise undertook to re-examine the dismissals, having already reinstated 103 workers. This being the case, the Committee requests the Government to inform it about the grounds for the dismissals of the 54 remaining workers.
5. 146. Regarding the allegation concerning the screening of a video containing false information about the trade union and the strike by the enterprise's administration, the Committee notes the Government's declaration that the video shows the aggressiveness of the trade union leaders during the strike held in September 1997 and that the violence cannot be denied because the perpetrators can clearly be seen in the film in question. In this respect, the Committee considers in any case that it would not be in a position to determine whether or not the content of the video is a true representation of reality.
6. 147. With respect to the publication by the ECT enterprise of a manual on labour relations (forwarded by the complainant) aimed at discrediting the trade unions, the Committee observes that the manual contains provisions relating to disciplinary measures for strikers, involvement of family members of possible strikers, preventive measures in respect of security, etc. The Committee notes the Government's declaration that the manual is no longer in use as it has been replaced by more modern regulations. This being the case, the Committee requests the Government to send it a copy of the new labour relations regulations at the ECT enterprise in order to be able to compare them with the previous regulations.
7. 148. With reference to the allegation concerning the placing of restrictions on trade union leaders being freed from their professional obligations to exercise their trade union activities, the Committee observes that the Government has not sent its observations on this matter. The Committee also notes that the collective labour agreement for 1997-98 (the period to which the allegations relate; the Government attaches a copy of the agreement to its reply) made provision in clause 29, subclauses 1, 2 and 3 that a certain number of leaders of the trade unions of the enterprise and of FENTECT should be freed from their professional obligations to carry out their trade union activities. This being the case, the Committee stresses the importance it attaches to adherence to the provisions of collective agreements freely negotiated by the parties. The Committee requests the Government to provide information on compliance with such provisions in practice.
8. 149. Lastly, the Committee requests the Government to send its observations concerning the allegation relating to the impossibility, following the September 1997 strike, for the trade union leaders to have access to the workplace.

The Committee's recommendations

1. 150. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to inform it of the grounds for the dismissal of 54 workers following the strike held in September 1997 of the Brazilian Post and Telegraph Enterprise (ECT).
   • (b) The Committee requests the Government to send it a copy of the new labour relations regulations at the Brazilian Post and Telegraph Enterprise (ECT), in order to compare them with the previous regulations.
   • (c) The Committee requests the Government to send its observations concerning the allegation about the impossibility, following the September 1997 strike at the Brazilian Post and Telegraph Enterprise (ECT), for the trade union leaders to have access to the workplace.
   • (d) The Committee requests the Government to provide information on compliance, in practice, with clause 29, subclauses 1, 2, and 3 of the collective agreement applicable to the ECT enterprise, which relates to time off from work for trade union leaders so that they can carry out their trade union activities.