Individual Case (CAS) - Discussion: 1989, Publication: 76th ILC session (1989)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Brazil (Ratification: 1952)

The Government representative of Brazil stated that his country was in a transition period, and the promulgation of the new Federal Constitution had introduced great innovations in the national legal order. The Congress was now drawing up specific legislation that would permit implementation of the Constitution. The Ministry of Labour was now preparing studies and Bills with the aim of speeding up the process of adapting the national legislation to new constitutional standards, in an effort to overcome the obstacles to full implementation of the Convention. It had to be noted that the Constitution represented great progress on a number of points: a trade union member could not be dismissed, except in case of serious misconduct, from the time of presenting his or her candidacy for trade union office until, in case of election, even as an alternate, the expiry of one year from the end of his or her term, as established in the legislation (article 8, paragraph VIII of the Constitution); there was recognition of collective agreements and awards (article 7, paragraph XXVI of the Constitution): civilian public servants were granted the right to freedom of association and the right to strike (article 37, paragraphs VI and VII of the Constitution); article 173, paragraph I of the Constitution guaranteed employees of public enterprises, mixed economy enterprises and others the social rights referred to in article 7 of the Constitution, including recognition of collective labour agreements and awards. It could be concluded that negotiation by representative organisations was fully ensured. In addition, freedom of collective bargaining was provided for in the Bill on wage policy that had been approved by Congress and was now under consideration by the President of the Republic. This Committee should also be informed that the Interministerial Council on Wages in State Enterprises (CISE) was playing an advisory role as an employer in cases in which the Government held more than 50 per cent of the enterprise capital. This Council was an advisory body for the management of state enterprises and was not an instrument that impeded collective bargaining.

The Government representative conceded that there still were a few obstacles to the full implementation of the Convention in the legislation and in practice, but the Government was making every effort possible to overcome them. There was an agreement regarding technical co-operation between Brazil and the ILO. Two officials from the Ministry of Labour had recently had internships on the application of standards, and this year the ILO Regional Adviser on Standards would be visiting Brazil. A request had been made for him to be accompanied by a legal expert to provide advice to national experts in drawing up Bills containing provisions which would be fully compatible with ILO Conventions.

The Worker member of Brazil stated that the present Committee should not limit itself to an analysis of legal terms which in any event were not implemented in practice. He referred in particular to the observation of the Committee of Experts on Decree No. 2425 of 7 April 1988, which provided in its section 7 that public enterprises, mixed-economy enterprises and private enterprises subsidised by the State or holding concessions from public services, could not conclude collective agreements or accords unless those pacts were in line with the decisions adopted by the Interministerial Council on Wages in State Enterprises (CISE). In this regard he stated that in practice, these enterprises first asked permission from the CISE, then negotiated and finally returned to the CISE, whose usual practice was to invalidate clauses in already negotiated agreements.

In relation to the right to strike, the speaker referred to the observations of the Committee of Experts on the right of workers to freely negotiate their conditions of employment. Those observations had mentioned CUT. It was necessary to clarify that the CUT now represents around 15 million workers with approximately 5 million members in local unions. He stated that the CUT had refused to engage in discussions on a social accord to fight inflation, because it was the CUT's position that Brazilian workers had nothing left to give up in material terms, since the statutory monthly minimum wage was the equivalent of approximately US$40. The CUT had also felt that values other than material ones - such as the right to strike - were values that could not be subject to bargaining. The CUT proposed to the Government and to the employers that a collective labour agreement be negotiated to take the place of current individual agreements; the bargaining should make up for the wage cuts occasioned by economic measures and by the absence of wage protection standards. The speaker indicated that at the moment wages had declined some 40 per cent and that he was astounded that in his country employers were maintaining that the compensation for the erosion in wages should not be more than 6 per cent, a proposal which the Government had accepted. This had caused the largest strike ever in Brazil, in which 30 million workers had participated; instead of negotiating with the workers as had been hoped, the Government introduced Temporary Order No. 50 which dramaticaly curtailed the right to strike, thus violating the Constitution and the provisions of the Convention. This restriction can only be compared to those which existed in three countries with very special historical circumstances: Hitler's Germany, Franco's Spain, and Stroessner's Paraguay. Brazil was one of the few countries in the world that had not yet ratified Convention No. 87, and there had often been repression of strikes by the military, as in November 1988, resulting in the death of three workers in Vuelta Redonda. In addition to this it is necessary to mention the detention of trade union leaders because of the strike and the dismissal of more than 300 trade union leaders over the past two years. The assassination of the trade union leader Chico Méndez was one of the many events of this type.

The speaker concluded by calling for the assistance of the present Committee to vindicate the legitimate rights of workers, in particular, the rights to strike and to bargain collectively; it was unacceptable that a country considered to have the eighth largest economy in the Western world continued to pay around 4 per cent of its gross domestic product for foreign debt servicing while at the same time having some of the most degrading social conditions known to modern history.

The Workers' members shared the opinion of the Employers' members' that Brazil was going through a transition period in relation to collective bargaining and freedom of association. It was necessary to recognise the existence of trade unions and to accept representative trade union organisations. If those organisations were not recognised for purposes of collective bargaining, they were being compelled to strike merely to have the right to negotiate; this was regrettable, since strikes should only be used as a last resort in difficult situations. The Workers' members took up three important points from the statement made by the Government representative: (1) improvement of protection against illegal dismissal of trade union representatives; (2) restrictions on the freedom of association rights of public servants in violation of Convention No. 98; and (3) limitation on the right to strike in sectors where there had been no such limits.

The Workers' members recalled their general approach regarding bargaining and the right to strike. Employers and workers from all quarters had to be brought together in an attempt to remedy the serious situation and to see to it that it was not only the workers who bore the brunt of economic adjustment. The Workers' members therefore called for solutions to be sought with the central trade union organisations that were truly representative of the vital forces in the country, in regard to freedom of association rights.

The Employers' members recalled that 37 years had passed since Brazil had ratified this Convention. There were still some fundamental problems with regard to compliance, but the picture painted by the Committee of Experts' report was not entirely negative. That Committee had noted with satisfaction a law protecting trade union officials from dismissal except in case of a serious offence. The Employers' members also noted that the Government appeared ready to enact a Bill to guarantee the right of association and the right to strike for persons employed directly or indirectly by the public administration. On the other hand, workers' right to freely negotiate their terms and conditions of employment (as provided by Article 4 of the Convention) was limited by wage and price controls and by governmental powers to cancel collective bargaining agreements and arbitration awards that were inconsistent with those controls. There was also work to be done with respect to the rights of workers in certain public sector enterprises to negotiate freely their terms and conditions of employment. The Employers were encouraged by the Government's stated wish to avail itself of technical co-operation to resolve remaining problems.

The Government representative of Brazil wished to clarify that Temporary Order No. 50 on the exercise of the right to strike was only valid for 30 days, and thus had expired. Also, Congress was drawing up a Bill which would regulate only the exercise of the right to strike in relation to essential services which could involve a true risk for the population. In connection with the accusations of repression of workers and violation of freedom of association, the Government of Brazil had supplied all the information required, and the matter had been thoroughly discussed in the Governing Body. It was important to note that since the time of the military dictatorship, the great trade union organisation CUT had been recognised and had now been called upon to participate along with other social partners in meetings organised by the Government.

The Worker member of Brazil wished to clarify that this was the first time the CUT had been included in the Brazilian delegation to this Conference, thanks to the efforts of the Ministry of Labour. He hoped this would be so every year and that the traditional method of balloting between the old official confederations would be abandoned. He also wished to state that while Temporary Order No. 50 was no longer in force, it had been reissued in the form of Temporary Order No. 59, which contained the same terms and was still in force.

The Committee took note of the Committee of Experts' report and of the information supplied by the Government representative. The Committee welcomed the fact that some progress had been achieved relative to the protection of freedom of association. It noted, however, that problems remained regarding the free fixing of wages and the right to collective bargaining for employees of the State and certain public sector enterprises. The Committee expressed the hope that the Government would soon take the necessary measures to apply the Convention fully in law and practice. It hope that the possibility for tripartite dialogue at the national level would be put to use in this regard and that the Government would be able to indicate progress in its next report.