Rapport définitif - Rapport No. 112, 1969

Cas no 385 (Brésil) - Date de la plainte: 03-AVR. -64 - Clos

1. 58. This case has already been the subject of eight interim reports by the Committee, appearing in paragraphs 133 to 152 of its 81st Report, paragraphs 271 to 277 of its 83rd Report, paragraphs 474 to 491 of its 85th Report, paragraphs 209 to 233 of its 87th Report, paragraphs 215 to 219 of its 90th Report, paragraphs 177 to 201 of its 93rd Report, paragraphs 121 to 187 of its 98th Report, and paragraphs 99 to 143 of its 103rd Report. All these reports have been approved by the Governing Body.
2. 59. The Committee last considered this matter at its session in February 1968, after which no more than three series of allegations remained outstanding, all the others having been the subject of final conclusions by the Committee. The following paragraphs will be devoted entirely to these three series of allegations. They are allegations concerning restrictions on the right to strike, a ban on trade union elections by the Bank Employees' Union of the State of Guanabara, and abuses of which " controllers " appointed to supervise union affairs are said to have been guilty.
3. 60. In connection with each of these three series of allegations, the Committee and, later, the Governing Body have requested the Government to furnish its observations or further information. The Government was informed of these requests by a letter dated 4 March 1968 and replied in a communication dated 2 April 1969.

A. A. The complainants' allegations

• Allegations concerning Restrictions on the Right to Strike
  61. 61 At its session in May 1967 the Committee had recommended the Governing Body to ask the Government to be good enough to make its observations on the alleged restrictions on the right to strike, notably as regards the scope of the legislative provisions mentioned by the complainants.
  62. 62 In its reply dated 5 January 1968, referred to by the Committee at its session in February 1968, the Government quoted a statement by the Director-General of the National Department of Labour, as follows: " In Brazil there is no restriction on the right to strike, but only a regulation of its exercise in accordance with the public interest and convenience. As in any country which claims to be civilised, abuses in the exercise of this right go beyond the field of labour law and become anti-social acts. Brazil, too, has penalties for anti-social behaviour. "
  63. 63 While taking due note of the Government's statement, the Committee observed that it was very general in character, whereas some of the complainants' allegations were quite specific.
  64. 64 Hence, bearing in mind that allegations respecting the right to strike came within the Committee's terms of reference in so far as the exercise of trade union rights was affected thereby, the Committee felt that if it were to be able to reach an informed opinion on that, aspect of the case, further information from the Government would be useful.
  65. 65 Specifically, the Committee wanted to know whether, as the complainants had alleged (and as would seem to follow from the language of the legislation itself ), representatives of the Ministry of Labour and Social Welfare were authorised, under section 8 of Act No. 4330 of 1964, to attend general meetings held with a view to the possible calling of strikes; whether they were entitled to address such meetings and, if so, what had been the object, and what in practice had been the effect, of the section in question.
  66. 66 The Committee observed that, according to the complainants, sections 12 and 13 of Act No. 4330 of 1964 gave a list of essential activities so comprehensive as to cover nearly all industrial activities. Noting that the list was indeed a lengthy one, the Committee wanted to know whether workers thus deprived of a valuable means of promoting their occupational interests could have recourse, instead, to machinery such as impartial conciliation and arbitration procedures.
  67. 67 Hence the Committee had recommended the Governing Body to ask the Government to be good enough to provide it with the information referred to in the two paragraphs above, together with any other information which the Government might see fit to provide in connection with the allegations analysed in paragraphs 144 to 151 of the Committee's 98th Report.
  68. 68 In its observations dated 2 April 1969 the Government once more affirms that Brazilian workers enjoy the right to strike by virtue of the Constitution and in accordance with a special law, Act No. 4330 of 1964.
  69. 69 Answering the specific request made (see paragraph 65 above), the Government states that section 8 of Act No. 4330 of 1964, which gave effect to a rule laid down in section 525 of the Labour Code, runs as follows:
• It is unlawful for any person or incorporated body not a member of the industrial association or not associated therewith to participate in the proceedings of the general meeting; this rule shall not apply to the representatives of the Ministry of Labour and Social Welfare specially appointed by the Minister or his representative.
  70. 70 " Under the legislation in force ", the Government continues, " this provision, far from representing an unwarrantable intrusion by the Government, is in accordance with the obligation borne by the Minister of Labour and Social Welfare (under section 11 of the Act in question) to arrange for the National Department of Labour or its regional offices to take such action as may induce a settlement between workers and employers. A representative of the Minister, attending just as an observer and without interfering in the proceedings, is obviously well placed to assess the situation, and his presence is conducive to the conciliation provided for in section 11."
  71. 71 As regards the real scope of the provision alluded to, the Government states that the provision has never been invoked since the Act came into force four years ago. In other words, the Minister of Labour and Social Welfare has never invoked his right to be represented at general meetings. " On the contrary ", says the Government, " the Ministry, together with the other Brazilian authorities, has remained aloof from the general meetings convened by occupational organisations, whether such meetings have been convened to call a strike or for any other reason."
  72. 72 The Act quoted in paragraph 69 above clearly shows that the Ministry of Labour and Social Welfare can be represented at trade union general assemblies and that this representative is entitled to speak. According to the Government's explanations, this provision is designed to provide the unions with a kind of technical assistance and does not, either in its aim or in its effect, detract from the principle that trade unions should be able to meet freely in their own premises, without prior authorisation and without supervision by the authorities.
  73. 73 Nevertheless, the Committee feels that a provision under which a representative of the authorities can attend trade union meetings may have its effect on the deliberations and on the decisions taken (especially if this representative is entitled to take the floor), even though this may not have been the original intention. Hence it might conceivably constitute an act of interference incompatible with the principle mentioned in paragraph 72 above.
  74. 74 This being so and since, according to the Government (see paragraph 71 above), the provision complained about has never been applied and seems to have fallen into abeyance, the Committee recommends the Governing Body to remind the Government of the importance of the principle set forth in paragraph 72 and to invite it to consider amending its legislation so as to eliminate the provision in question.
  75. 75 As regards the points raised in paragraph 66 above, the Government makes no mention of the requests addressed to it, apart from a general reference to conciliation machinery (paragraph 70). In this connection, the Committee has always emphasised how important it is, whenever strikes in essential services are forbidden or subject to restrictions, that there should be proper safeguards for the rights of workers thus deprived of an essential means whereby they may promote their occupational interests, especially in the form of suitable conciliation and arbitration machinery, at once rapid and impartial, to which those concerned may have recourse at every step, and that decisions arrived at by arbitration should always be binding on both parties.
  76. 76 Having examined the terms of Act No. 4330 of 1964, the Committee noted that provision is made for conciliation and arbitration (sections 11 and 23) in all activities and not only in essential services. In fact, according to section 23, if conciliation fails, the matter is treated as a collective dispute in accordance with the Labour Code and in such circumstances is referred to a labour tribunal. This provision, which has the effect of preventing strike action after the tribunal has given its judgment, does not appear to offer the guarantees necessary for it not to limit seriously the possibilities of action of organisations in defending and promoting the interests of their members.
  77. 77 Accordingly, the Committee recommends the Governing Body to draw the Government's attention to the above considerations.
• Alleged Ban on Elections by the Bank Employees' Union of the State of Guanabara
  78. 78 The complainants alleged that the Government was still interfering with the trade unions and quoted as an example the Bank Employees' Union of the State of Guanabara, under official supervision since 1964; they alleged that this union had been forbidden by the Government to hold elections.
  79. 79 In its observations the Government recalled that during the exceptional state of affairs which obtained in Brazil in 1964, some 500 organisations had been made subject to official supervision, amongst them the bank employees' union in question. " Such action ", says the Government, " was fully justified; a revolutionary movement existed, and it was vitally necessary to prevent a reaction against the recently instituted New Order. " The Government goes on to state that at present no more than sixteen organisations are subject to supervision. The Bank Employees' Union of the State of Guanabara is not one of them.
  80. 80 This union, so the Government affirms, " is working as an association in a perfectly normal way, under an executive committee which was elected by its members by proper ballot and which has taken office in full accordance with the law ".
  81. 81 In these circumstances, while expressing its concern as to the fact that there are still organisations subject to supervision, the Committee notes that the particular union quoted by the complainants seems at the present time to be functioning normally under a freely elected executive board and recommends that the Governing Body decide that this aspect of the case calls for no further consideration.
• Alleged Abuses by " Controllers " Responsible for the Running of Trade Unions
  82. 82 The complainants affirm that certain military men, appointed as " controllers " to take charge of the trade unions, have taken advantage of their position and of the confidence bestowed on them by the authorities to deprive the unions of property belonging to them.
  83. 83 In its observations, the Government declares that the activities of the " controllers " appointed to run the unions or to " regularise their activities " are governed by a ministerial ordinance which forbids the members of supervisory committees to:
      • (a) buy or sell fixed property;
      • (b) buy or sell domestic electrical apparatus and office machines or equipment;
      • (c) buy or sell vehicles;
      • (d) conclude collective agreements;
      • (e) recruit or dismiss employees or members of the liberal professions, unless specifically authorised by the local branch of the Ministry of Labour;
      • (f) relinquish or donate goods of any kind;
      • (g) undertake commitments for expenditure in circumstances not covered in the preceding paragraphs but such that, by reason of the sums involved, might come within the above prohibitions;
      • (h) use vehicles belonging to the organisation, except in the interests of the organisation itself.
  84. 84 The Government goes on to say that this same text makes it clear that nobody may derive pecuniary advantage from his appointment to run the affairs of a trade union in the circumstances thus defined " unless the circumstances provided for, and the limits set forth in, section 521 (single paragraph) of the Labour Code are observed, and then only if prior authorisation is obtained from the local branch of the Ministry of Labour and Social Welfare; the administrative officer must in any event belong to the occupational category involved ".
  85. 85 The Government ends by indicating that any breach of the ministerial ordinance mentioned in paragraphs 83 and 84 above is punishable.
  86. 86 In the light of the Government's explanations with regard to this aspect of the case (which relates only indirectly to freedom of association properly so called), it does seem that safeguards are provided for under national legislation against possible abuses by persons responsible for running trade unions subject to supervision.
  87. 87 This being so, and without prejudice to the views it has already expressed concerning the supervision of trade unions, the Committee recommends the Governing Body to urge the Government to ensure that the relevant legislation is strictly applied in the event of abuse by persons responsible for administering unions subject to supervision and, subject to this reservation, to decide that this aspect of the case calls for no further consideration.

The Committee's recommendations

1. 88. In these circumstances, the Committee recommends the Governing Body, with regard to the case as a whole:
   • (a) to decide, while expressing its concern as to the fact that there are still organisations subject to supervision, that for the reasons set forth in paragraph 81 above there is no point in further consideration of the alleged ban on elections by the Bank Employees' Union of the State of Guanabara;
   • (b) as regards alleged abuses by " controllers " appointed to manage trade union affairs:
   • (i) to urge the Government to ensure that the relevant legislation is strictly applied in the event of abuse by persons responsible for the affairs of trade unions subject to supervision;
   • (ii) subject to this reservation, to decide that this aspect of the case calls for no further consideration;
   • (c) as regards the restrictions alleged to have been put on the right to strike, bearing in mind the principle that allegations concerning this right, in so far as they relate to freedom of association, can properly be considered by the Committee:
   • (i) to recall the importance of the principle that unions must be entitled to meet, without let or hindrance, in their own premises, without prior authorisation and free from any official supervision;
   • (ii) to invite the Government, for the reasons set forth in paragraphs 73 and 74 above, to consider amending its legislation with an eye to eliminating that clause in section 8 of Act No. 4330 of 1964 which makes it possible for the Ministry of Labour and Social Welfare to be represented in trade union plenary meetings by a delegate entitled to take the floor;
   • (iii) to express the view that section 23 of Act No. 4330 of 1964, mentioned in paragraph 76 above, which has the effect of preventing strike action after the tribunal has given its judgment, does not seem to offer the guarantees necessary for it not to limit seriously the possibilities of action of organisations in the defence and promotion of the interests of their members.