Rapport définitif - Rapport No. 396, Octobre 2021

Cas no 3293 (Brésil) - Date de la plainte: 09-JUIN -17 - Clos

Allegations: The complainant organizations allege that, in the context of wage disputes, the unions of judiciary employees of the states of Minas Gerais and Maranhão are restricted in the exercise of their freedom of association by the judicial authorities of these states

1. 141. The Committee last examined this case at its June 2019 meeting and on that occasion presented an interim report to the Governing Body [see 389th Report, paras 127–149]. 
2. 142. The Union of Judiciary Employees of Maranhão State (SINDJUS-MA) submitted further information in communications dated 31 July 2019 and 10 February 2020. The National Federation of State Judiciary Workers (FENAJUD) provided additional information in a communication dated 4 October 2019. The complainant organizations, including the Confederation of Public Servants of Brazil (CSPB), provided further information through a joint communication dated 10 September 2021.
3. 143. The Government sent its observations in communications dated 30 September 2019, 21 February 2020 and 25 March 2020.
4. 144. 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. Previous examination of the case

1. 145. In its previous examination of the case, the Committee made the following recommendations [see Report No. 389, para. 149]:
   • (a) With regard to the alleged lack of independence of the courts of Minas Gerais State that are examining the defamation cases against the Union of Judiciary Employees of Minas Gerais State (SERJUSMIG), the Committee requests the Government to report on the different options in terms of remedies available to that trade union organization with respect to the substance of the decisions handed down.
   • (b) Noting that, according to the information received, the defamation proceedings filed in 2015 against SERJUSMIG have so far given rise only to a preliminary decision, the Committee trusts that the judicial proceedings under way will be completed as soon as possible and that the decisions by the Committee mentioned in the conclusions of this case will be duly taken into consideration. The Committee requests the Government to keep it informed in this respect.
   • (c) Noting that it has not yet received the Government’s reply on the administrative disciplinary proceedings that were allegedly brought against nine judiciary employees who participated in SERJUSMIG’s campaign over wages, the Committee requests the Government to provide its observations in this regard as soon as possible.
   • (d) Noting that the Government has not provided its observations on the allegations concerning the dispute between the Union of Judiciary Employees of Maranhão State (SINDJUS-MA) and the Judicial Authority of Maranhão State, the Committee requests the Government to send its reply in this regard as soon as possible.

B. New information from the complainants

1. 146. In its communication of 4 October 2019, FENAJUD provides updated elements on the judicial and administrative disciplinary proceedings filed against the Union of Judiciary Employees of Minas Gerais State (SERJUSMIG). As regards the lawsuits filed by the Association of Minas Gerais Magistrates (AMAGIS) and the then president of the Court of Justice of Minas Gerais (TJMG) against SERJUSMIG, its then president and five judiciary employees of the Minas Gerais State, the complainant informs that settlements were reached and judicially homologated between July and October 2018. With regard to the administrative disciplinary proceedings, it indicates that, in view of the lapse of time, the statute of limitations was declared and, as a result, the employees were not punished. Therefore, the administrative proceedings against Jamilce Polliana Aguilar Silva, Dagma Geralda Batista, Ana Elisa Bittencourt Fonseca, André Rodrigues Damaceno, Luciene Peracci, Karina Kerley Porto, Josué Ribeiro Roberto, Darci Eduardo Dias and María Cristina Fonseca are now closed. In light of the above, the complainant, citing ethical and moral reasons and the fact that the conflict no longer exists, states that it is no longer necessary to proceed with the present case and requests its termination in view of the resolution of the conflict.
2. 147. In its communication of 31 July 2019, SINDJUS-MA refers to the dispute between the judiciary employees of Maranhão State and the Court of Justice of that State, in particular the salary deductions and the fine of 1.5 million Brazilian reals (BRL), which resulted from a strike that was declared illegal by the Court of Justice of Maranhão State. It requests that a conciliation hearing be provided, so that an agreement may be found on the salaries deductions and the penalty imposed on SINDJUS-MA due to strike movements may be terminated. In its second communication, of 10 February 2020, SINDJUS-MA emphasizes the urgency of the case as the survival of the union would be at stake and denounces the situation of serious vulnerability to anti-union conduct to which the workers would be exposed in Brazil.
3. 148. In a communication dated 10 September 2021, the complainant organizations submitted a court decision dated 6 April 2021 regarding an action brought by Anibal Lins, the then president of SINDJUS-MA, following public statements made against him by two magistrates of the Court of Justice of Maranhão State. The Court's decision requires the State of Maranhão to grant the union leader a right of reply proportionate to the harm suffered, the said right of reply having to take place in a plenary session of the court and be broadcast on web radio. The complainant organizations allege that this ruling demonstrates the hostility of the administration of justice representatives towards the trade union and its refusal to establish a dialogue with it.

C. The Government’s reply

1. 149. In its communication dated 30 September 2019, the Government refers to the allegations concerning the Judicial Authority of Minas Gerais State. It reiterates that the union activities of SERJUSMIG were considered by AMAGIS as causing collective moral damage to the magistrates, which justified the filing of lawsuits. The Government indicates that the fundamental issue of this case has already been brought to the attention of the judiciary branch, which, in turn, has the responsibility to decide on the issue. It points out that, based on the principle of separation of powers that guides the country's legal system, the Secretariat of Labour Relations, an agency engaged in the executive branch, has no competence to break with the country’s constitutional structure by interfering in the acts of another branch.
2. 150. In its communication of 21 February 2020, the Government confirms that in Minas Gerais State, the parties entered into a transaction as to the object of the litigation. It also refers to the request of FENAJUD that the present case be terminated. The Government points out that not even in the administrative area was there any application of any penalty on the judiciary employees. According to the Government, it therefore cannot be disputed that the procedures relevant to the analysis of the cases are in full operation in Brazil, ruling out any misperception that the country is condoning anti-union practices.
3. 151. As regards the allegations concerning the situation occurring in Maranhão State, the Government emphasizes that the dispute was brought to the attention of the judiciary branch. Underlining again that a suitable conclusion was found between the parties in litigation in Minas Gerais State, it believes that the same can occur regarding the litigation related to the public employees of the State of Maranhão.
4. 152. In its communication dated 25 March 2020, the Government indicates that in the State of Maranhão, the salary deductions resulting from the strike days were upheld, even after the intermediary management of the National Council of Justice, where the judiciary employees proposed restituting the work hours lost in exchange for the suspension of the docking of the wages.

D. The Committee’s conclusions

1. 153. The Committee recalls that the original complaint concerns two separate instances of alleged restrictions on freedom of association in the context of wage disputes in the judicial sector. It takes note of the additional information provided by the complainant organizations and the Government. As regards the allegations concerning the dispute between SERJUSMIG and the Judicial Authority of Minas Gerais, the Committee notes FENAJUD’s indication that: (i) the lawsuits that were filed by AMAGIS and the then TJMG president against SERJUSMIG, its then president and five judiciary employees of the Minas Gerais State were settled between the parties; (ii) the administrative disciplinary proceedings against nine judiciary employees who participated in SERJUSMIG’s campaign over wages were closed, as the statute of limitations was declared; and (iii) it is no longer necessary to proceed with the present case in view of the resolution of the conflict. The Committee also takes note that the Government indicates that: (i) the parties entered into a transaction as to the object of the litigation; (ii) FENAJUD requested that the present case be terminated; (iii) there was not an administrative penalty applied to the judiciary employees; and (iv) these developments prove that the procedures relevant to the analysis of the cases are in full operation in Brazil and that the country is not condoning any anti-union practices. Observing that the complainant and the Government both refer to a mutually agreed solution to the dispute that was found between the parties, the Committee will not pursue the examination of these allegations.
2. 154. Regarding the allegations concerning the dispute between SINDJUS-MA and the Judicial Authority of Maranhão State, the Committee recalls that, in its initial communications, SINDJUS-MA alleged that: (i) after having declared the illegality of a 2015 strike carried out by its own employees, the Court of Justice of the Maranhão State imposed a fine of BRL1.5 million (approximately US$285,000), which threatens the survival of the union; (ii) without taking into consideration the solution proposed in May 2017 by the National Council of Justice, the supervisory body of the Brazilian judicial system, the Court of Justice refused to allow the work that was suspended during the strike to be fulfilled through additional compensatory hours of work and rather docked all pay corresponding to the duration of the strike; and (iii) the Court of Justice of Maranhão State engaged in anti-union acts and practices by refusing to receive union representatives and to enter into negotiations with the union in an attempt to discredit SINDJUS-MA as a representative of judiciary employees. The Committtee notes that in its additional communications, SINDJUS-MA: (i) requested a conciliation hearing with a view to ensure the refund of the pay that was lost by the employees and the cancellation of the fine imposed on the union; (ii) emphasized the urgency of the case and the need to prevent the punishments imposed on the union and the judiciary employees of Maranhão State from becoming irreversible; and (iii) communicated a court ruling granting the then president of SINDJUS-MA a right of reply following public statements made against him by two magistrates of the Court of Justice of Maranhão State that would demonstrate the hostility of the administration of justice representatives towards the trade union. The Committee further notes that the Government: (i) states that the salary deductions resulting from the strike days were upheld; (ii) emphasizes that the dispute was brought to the attention of the judiciary branch; and (iii) believes that a similar agreement to the one that was reached between parties in litigation in Minas Gerais State can be achieved in the State of Maranhão.
3. 155. The Committee recalls that salary deductions for days of strike give rise to no objection from the point of view of freedom of association principles [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 942]. The Committee notes, however, that the Government has not provided information on the fine of BRL1.5 million that was imposed on SINDJUS-MA which would allegedly threaten the survival of the union. In this respect, the Committee recalls that it expects that any fines that could be imposed against trade unions for unlawful strikes will not be of an amount that is likely to lead to the dissolution of the union or to have an intimidating effect on trade unions and inhibit their legitimate trade union activities, and trusts that the Government would endeavour to resolve such situations by means of frank and genuine social dialogue [see Compilation, para. 969]. The Committee trusts that the Government will take the measures within its power to ensure that the fine imposed upon SINDJUS-MA by the Judicial Authority of Maranhão State does not threaten the very survival of the union and invites it to bring the parties together to review this matter.
4. 156. The Committee also observes that the Government did not refer to the initial allegation that the Court of Justice of Maranhão State would engage in anti-union acts and practices by refusing to receive union representatives and refusing to enter into negotiations with the union. It recalls that both employers and trade unions should bargain in good faith and make every effort to come to an agreement, and satisfactory labour relations depend primarily on the attitudes of the parties towards each other and on their mutual confidence [see Compilation, para. 1329]. Noting the Government’s indication that a similar agreement to the one that was reached in Minas Gerais State may be achieved in Maranhão State, the Committee trusts that the Government will seek to foster a climate of dialogue and trust between the parties with a view to reaching a negotiated agreement to end the dispute.

The Committee’s recommendations

1. 157. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee trusts that the Government will take the necessary measures in its power to ensure that the fine imposed upon the Union of Judiciary Employees of Maranhão State (SINDJUS-MA) by the Judicial Authority of Maranhão State does not threaten the very survival of the union, and that it will seek to foster a climate of dialogue and trust between the parties with a view to reaching a negotiated agreement to end the dispute.
   • (b) The Committee considers that this case does not call for further examination and is closed.