Informe provisional - Informe núm. 349, Marzo 2008

Caso núm. 2588 (Brasil) - Fecha de presentación de la queja:: 30-MAY-07 - Cerrado

Allegations: The complainant organization alleges favouritism by the company General Motors towards trade unions that are not really representative and were created under the auspices of the employer, as well as obstacles to the free choice of the trade union that workers of the company wish to join and the granting of benefits to the leaders of the trade union associated with the employer

1. 499. The complaint under this case is contained in a communication from the National Confederation of Metalworkers (CNM) dated 30 May 2007.
2. 500. The Government sent its observations in a communication dated November 2007.
3. 501. 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).

A. The complainant’s allegations

1. 502. In its communication dated 30 May 2007, the CNM, on behalf of the Trade Union of Workers in the Metallurgical, Mechanical and Electrical Equipment Industries of Porto Alegre (STIMMMEPA), indicates that General Motors of Brazil, a company with multinational capital established in the city of Gravataí, Río Grande do Sul since 1997, has been carrying out its activities without respecting the rights of its workers. There have been violations of the basic rights of the workers contained in the labour legislation, as well as abuses of their dignity in their work. The CNM adds that the principles contained in the International Labour Organization Conventions have also been violated. The complainant organization indicates that it is not appropriate in this complaint to discuss which trade union is the most representative for the category of metalworkers in Gravataí, given that this issue should be resolved by the judiciary or trade unions.
2. 503. The establishment of General Motors of Brazil in the city of Gravataí involved the implementation of projects intended to split the trade union representation of the metalworkers in that city. The splits produced in the category constituted a strategic objective when establishing the company in the city. This brought about an alliance between employer sectors and a trade unionism that existed “on paper” and was docile and lacking in commitment. These docile trade unions that were submissive to the employers did not play the necessary and responsible role of defending the rights of workers. In this context, an artificial split of the metallurgical base of the workers in the city of Gravataí was created, which was achieved through the creation of the Trade Union for Workers in the Metallurgical, Mechanical and Electrical Equipment Industries of Gravataí (SINMGRA). The meeting creating this trade union was riddled with flaws. It was held with no more than 20 people, some of whom did not belong to the metallurgical sector, and was carried out behind closed doors. Hundreds of workers from the sector who turned up to participate in the meeting to vote against the split and who wanted to continue being represented by the STIMMMEPA were prevented from entering the meeting. The complainant organization indicates that the SINMGRA trade union later merged with Ex-Association, another entity with low representation. The complainant organization states that, by means of a merely formal analysis and without evaluating the actual wishes of the workers concerned, these trade unions obtained a legal ruling awarding them representation for the sector. This ruling has been appealed before the judicial authority by means of various proceedings which are pending. According to the complainant organization it is important to point out that there are clear signs that these two trade unions and the trade union which resulted from their merger have received and are receiving material and political support from companies in the town concerned, and in particular from General Motors. This support ranges in practice from financial subsidies for the trade unions to explicit acts of coercion, violating the freedom of association, of the workers both individually and collectively, forcing them to join or support the company’s preferred trade union under threat of being dismissed or punished.
3. 504. The complainant organization alleges that there is evidence that General Motors is subsidizing the SINMGRA, which is illegal, in that it shows employer intervention in the workers’ trade union (the complainant organization refers to various faxes sent between staff of General Motors referring to the support that should be provided to the new trade union). According to the CNM, the company also pays additional sums of money to the leaders of the SINMGRA. The complainant organization alleges that the company favoured the trade union concerned not only through the payment of money or by exerting influence, but also through the recruitment of the leaders of the SINMGRA in order to integrate them into the management of the company, the purpose of which was to ensure that the company’s interests could be defended more easily.
4. 505. The complainant organization indicates that, in addition to the financial benefits granted to the new trade union, the company denied access, in a discriminatory manner, to its premises by the STIMMMEPA. At the meetings held at the company the workers were urged to join or support the new trade union, under threat of serious consequences if they refused to comply. The workers, after observing the representativeness of the new trade union, rejected it in every possible way, which led to the persecution of these workers by the company. The persecution took the form of moral harassment or unjustified dismissals, in response to which a number of complaints were made about the company’s attitudes. In September 2003, the first complaints were lodged with the Public Prosecutor for Labour No. 4, requesting that investigations be conducted into the financial influence of General Motors in the creation of the SINMGRA. The complaints also referred to coercion and moral harassment by the employer with respect to workers who had rejected the new trade union representation and who had condemned the elections of that trade union, which were in their view null and void.
5. 506. As an example, the complainant organization mentions that, in 2005, two employees of General Motors lodged another complaint with the Public Prosecutor for Labour, indicating that on 15 February 2005 a meeting was held in the company’s industrial complex for the purpose of approving the clauses of the collective agreement proposed by the SINMGRA, which had not been agreed upon at previous meetings with the workers. It adds that, when the workers arrived at the company, they were prevented from entering and were forced to remain in the car park, which was where the meeting took place, without the option of being present or participating in the meeting. The access gates to the car park were later closed, forcing the workers to be present at the meeting, with the sole objective of ensuring a quorum. The workers were also filmed or photographed in order to record any rejection by the workers at the meeting being held. In this way, the workers’ right to participate freely or not to participate in the event was violated and they were forced to participate in the meeting held by mutual agreement between the SINMGRA and General Motors. Other complaints were lodged with the authorities by several tens of workers concerning acts of harassment and reprisal by the company.
6. 507. The complainant organization alleges that in the context of the violations of the ILO Conventions concerning freedom of association, workers Airton, Taborda and Rogelio Testa were recently dismissed based on a highly questionable just cause. The reason for their dismissal is clear: these workers were carrying out their activities independently, including activities aimed at ensuring greater protection of the work environment, and were questioning the legitimacy of the trade union financed by the enterprise.

B. The Government’s reply

1. 508. In its communication sent in November 2007, the Government of Brazil states that on 5 December 1941 it granted trade union registration to the STIMMMEPA to represent the category of workers in the metallurgical, mechanical and electrical equipment industries in the town of Porto Alegre. In 1971 that trade union was granted an extension of its territorial base to the towns of Alborada, Cachoeirinha, Gravataí, Guaiva and Viamao of the state of Río Grande do Sul. On 30 September 1997, the SINMGRA requested trade union registration and indicated that it was intending to represent the category of metalworkers in mechanical offices for the repair of vehicles and accessories, in the electrical equipment, electronics and electromechanical industry, in the automobile and part and component fitting and manufacturing industry, in the dental, medical and hospital products and equipment industry, in the refrigeration and water treatment industries and in the iron preparation industry in the municipality of Gravataí. On 3 December 1997 the SINMGRA (Ex-Association) requested trade union registration in order to represent the category of workers in the metallurgical, mechanical and electrical equipment industries in the municipality of Gravataí, and it was in these circumstances that discussion started with regard to the representation of the metalworkers in the municipality of Gravataí.
2. 509. The Government states that the request for trade union registration made by SINMGRA was challenged twice; one of the challenges was considered to be legitimate and the other not legitimate. The request for trade union registration made by SINMGRA therefore remained pending until the secretary for labour relations was notified of the relevant decision. On 10 September 1999, based on the ruling of the Court of Justice of the State of Río Grande do Sul, the registration of the SINMGRA was then published in the Official Journal of the Union. The STIMMMEPA, in disagreement with the granting of trade union registration to SINMGRA, later lodged an appeal before Chamber 15 of the Judicial Department of the Federal District against the decision of the Executive Secretary of the Ministry of Labour and Employment. In February 2001 the Ministry was notified that the decision had been taken to suspend the administrative act granting trade union registration to the SINMGRA, re-establishing the representation of the professional category concerned in favour of the STIMMMEPA, until the controversy had been resolved by the state judicial authority. On 11 March 2002 a ruling was handed down cancelling the trade union registration awarded to the SINMGRA. The SINMGRA then lodged an appeal against that ruling. The Government later refers to various legal proceedings instituted by the sector’s trade unions. Finally, the Government states that, taking into account the ruling handed down by Chamber No. 21 of the Judicial Department of the Federal District, Technical Note DIAN/CGRS/SRT/MTE No. 217/2005 was issued proposing the granting of definitive registration to the SINMGRA (Ex-Association) to represent the category of workers in the metallurgical, mechanical and electrical equipment industries based in the municipality of Gravataí.

C. The Committee’s conclusions

1. 510. The Committee observes that in this case the complainant organization alleges that the establishment of the company General Motors in the city of Gravataí involved the splitting of the trade union representation of the workers in the metallurgical sector, and that the company has favoured the creation of trade unions (SINMGRA and Ex-Association). The complainant organization alleges that, in addition, these trade unions are receiving political and financial support (supplementary payments to their leaders, recruitment of leaders in order to integrate them into the company’s management) from the company, and that the company is threatening and coercing workers into supporting or joining those trade unions (it is alleged that there have been dismissals as a result of questioning the legitimacy of the trade unions financed by the company or for not supporting the activities of these trade unions, as well as pressure exerted on the workers to participate in their meetings). According to the complainant organization complaints have been lodged with the Public Prosecutor for Labour in connection with these events.
2. 511. The Committee notes that the Government refers in its reply to numerous administrative and judicial proceedings initiated by the trade unions of the metallurgical sector with the aim of obtaining representation of the workers based in the municipality of Gravataí (which was ultimately granted to the SINMGRA – Ex-Association).
3. 512. In this regard, the Committee observes that the Government does not refer in its reply to the allegations made concerning the acts of favouritism by General Motors towards two trade unions and against the STIMMMEPA. In these conditions, in order to reach its conclusions on the alleged facts in this case, the Committee urges the Government to take the necessary measures, including consulting with the representative employers’ organization, to have an investigation carried out into all the allegations made by the complainant organization and to communicate the findings of that investigation.

The Committee's recommendations

1. 513. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee urges the Government to take the necessary measures, including consulting with the representative employers’ organization, to have an investigation carried out into all the allegations made by the complainant organization (alleged acts of favouritism by General Motors towards two trade unions (SINMGRA and Ex-Association), dismissals and harassment of workers for not supporting or joining those unions, etc.) and to communicate the findings of that investigation.