Individual Case (CAS) - Discussion: 2019, Publication: 108th ILC session (2019)

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



Written information provided by the Government

Once again, it was with perplexity that Brazil heard the news that it has been mentioned in the preliminary list of countries that may be examined during the International Labour Conference in 2019.

To this end, as a general report, Brazil indicates below several issues that substantiate its dissatisfaction with the attitude of this International Labour Organization (ILO), especially because it is one of the countries that has ratified the most international labour Conventions and seeks, enduringly, in line with domestic legislation, to give the highest degree of effectiveness to such instruments.

The Committee of Experts on the Application of Conventions and Recommendations

First, it should be emphasized that the ILO Committee of Experts, whose primary mission is to monitor the effective application of international labour agreements – within the scope of the various members of the Organization – should heed the fact that the Conventions may receive different interpretations when they are applied individually by countries, especially due to the need for harmony between the international text and domestic legislation.

Having said that, Brazil yet again reaffirms that it has not violated any of the provisions of ILO Convention No. 98 when drafting Act No. 13467 of 13 July 2017.

Prevalence of negotiation over legislation (articles 611-A and 611-B of the CLT)

As previously mentioned in the documents sent by Brazil to this Organization, the provisions of articles 611-A and 611-B of the Consolidation of Labour Laws (CLT), brought to the legal system through Act No. 13467/2017, are in full harmony with the content of ILO Convention No. 98, especially with respect to Article 4 of the aforementioned Convention.

In this line of thought, built by the provisions mentioned above, Brazil aimed to increase the legal security of the collective instruments negotiated between workers and employers. To this end, it presented a list of labour rights that may be subject to collective bargaining. However, with the clear objective of safeguarding interests superior to collective bargaining, a specific provision was created whose list of topics cannot be included within the scope of collective clauses and also presents a series of rights enshrined in the 1988 Constitution of the Federative Republic of Brazil itself. It is, therefore, a modern legislation in the sense of demonstrating to social partners the scope of collective bargaining in a transparent manner.

The purpose of clarifying the matter that can be subject to collective bargaining perfectly respects all the content of ILO Convention No. 98 and, even more significantly, confers a high degree of concreteness to the Constitution of the Federative Republic of Brazil of 1988, which, since its enactment, promoted collective bargaining and established the recognition of collective labour agreements and accords as a fundamental right of workers.

It is also important to emphasize that since the advent of Act No. 13467/2017, the Judiciary, notably the Supreme Court of Brazil, has focused on several issues of that statute. However, no constitutional action was brought to the attention of the Supreme Court of Brazil on the issue of the prevalence of negotiation over legislation (articles 611-A and 611-B). In this regard, having passed through various constitutionality and conventionality judgments in the various committees of the Brazilian Parliament, and not having been dismissed under the Supreme Federal Court of Brazil, it is evident that such provisions are in line with the legal system and do not violate domestic and international laws. It is, above all, a democratic and sovereign action, whose main purpose is to enable collective, free and voluntary negotiations with legal certainty.

In terms of numbers of collective instruments, one should consider that the Mediator System, the system responsible for registering collective instruments negotiated by trade unions, demonstrates that collective negotiations continue to be conducted and registered in numbers approximating to those anterior to the advent of Act No. 13467/2017. Specifically about the numbers, there was a total of 13,435 collective instruments signed in 2017; 11,234 in 2018; and 12,095 in 2019, taking into account the first quarter of each year. Therefore, if Brazil showed a drop of 16.38 per cent in the 2017–18 comparison, it showed an evolution of 7.11 per cent in relation to the year 2018–19.

The above finding, in turn, suggests that, although the regulatory framework requires a reasonable amount of time for the parties to get to know it and apply it in practice, negotiations did not experience an alarming decrease, as affirmed by those who are unaware of the actual data. In practice, therefore, articles 611-A and 611-B of Act No. 13467/2017 did not represent an obstacle to the continuation of collective bargaining in Brazil.

The exception to the single paragraph of article 444 of the CLT (individual negotiation)

At no time is Brazil unaware that the rule of negotiation has a collective character. However, after observing that a small portion of workers have greater bargaining power in relation to the employer, Act No. 13467/2017 decided to entrust greater force to individual negotiations, only in these cases. In this sense, the worker with a higher educational level and who receives a monthly salary equal to or higher than twice the maximum limit of the social security benefits of the Brazilian social security system, can stipulate contractual conditions that, in his view, are more advantageous for him.

On the other hand, as mentioned above, the possibility presented above reaches approximately 1.45 per cent of the workers governed by the CLT and 0.25 per cent of the Brazilian population. Thus, despite the voices that argue that individual negotiation has replaced collective bargaining, this statement is not true. What was sought with the device, one can recall, was to grant a select group of workers, holders of a greater bargaining power, with the possibility of entering into negotiations that will meet their individual interests in a more fruitful way.

Regulation of autonomous and self-employed workers (article 442-B of the Labour Code)

As is the case for all provisions in Act No. 13467/2017, the core function of article 442-B is to provide both self-employed and companies with legal certainty. In this field, the Brazilian Parliament, in perceiving the need to legislate on situations that have long existed in practice, understood that it would be advisable to regulate the situation concerning the self-employed, while excluding an employment relationship between the contracting parties.

It is obvious that Brazil’s legislation has not distanced itself from the so-called principle of the primacy of reality. In this regard, it is not excluded that the competent authorities in Brazil can unveil genuine employment relationships beneath disguised service agreements. This is the reason why Brazil has enacted an ordinance by which full assurance is given that an employment relationship will be recognized where legal subordination between a professional and an employer exists. Once again, it is proved that the text of Act No. 13467/2017 has refined the view about the law while preserving the necessary legal certainty for all social actors.

Prevalence of collective accords over collective agreements (article 620 of the Labour Code)

Another question raised by the report of the Committee of Experts refers to the fact that Act No. 13467/2017 has introduced a rule in order to reinforce collective bargaining by means of taking due account of specific circumstances surrounding the workers of a given category at the company-level. Such provision’s intent has been, therefore, to allow for the prevalence of the specific conditions (collective accords) over the general conditions (collective agreements).

In this light, it cannot be overlooked that the collective accord is much closer to the day-to-day life of the workers at the company level. Thus, the factual reality can be better translated by means of the collective accord, giving more density to the negotiated clauses.

All in all, it could be said that, instead of violating Article 4 of Convention No. 98, new article 620 of the Labour Code is in full compliance with that international standard. Convention No. 98, beyond any doubt, affirms the need that measures for the promotion of collective bargaining be appropriate to the national conditions. Hence, the Brazilian Parliament, while abiding by Convention No. 98, acknowledged the specificity of the collective accords over the collective agreements.

Conclusions

Out of respect for the ILO, Brazil has consistently provided detailed information on the substantive minutiae of a wide range of relevant provisions of Act No. 13467/2017.

In addition, as indicated on previous occasions, it should be underlined that internal issues of Brazil, with no bearing whatsoever on labour matters, cannot serve as a basis for requesting the country to present explanations on a legislation that was extensively discussed in Parliament and that has been gradually implemented in the context of legal relations between workers and employers.

In this sense, the inclusion of Brazil in the preliminary list, for the second consecutive year, is unwarranted. Nonetheless, Brazil has demonstrated that Act No. 13467/2017 did not infringe any international standards, in particular Convention No. 98.

Discussion by the Committee

Government representative – I stand before you today with a deep feeling of unfairness and injustice. The ILO has treated Brazil in an unreasonable, unfounded and unfair way spanning now for three years. Over this period, the Committee of Experts has fallen short of the most elementary standards of impartiality and objectivity. In 2017, the Committee of Experts issued pre-emptive, speculative observations on what was then still a bill under discussion in the Brazilian Congress. In 2018, having met in Geneva only a few days after the entry into force of the new Labour Code of Brazil, the Committee of Experts broke the cycle of presentation of reports in an unjustified manner, and considered the new legislation in breach of Article 4 of the Convention.

Despite Brazil’s further information provided last year, the Committee of Experts hastened, once again, in 2019, by suggesting courses of legislative action for the country, based on mere assumptions and unwarranted prejudgements. Unfortunately, the shortcomings in the Committee of Experts have been compounded by the lack of transparency, objectivity and genuine tripartism. By being shortlisted twice in a row, for no technical or sound reasons on both occasions, Brazil illustrates how easily (and dangerously) the supervisory system of the ILO can be misused to the detriment of the Organization’s legitimacy and effectiveness. A system that allows for a hasty analysis to become – by the political whim of a few – a case in the Committee is way below what is expected from an international organization like the ILO. This case shows that the supervisory system has to undergo a serious, profound and comprehensive reform, for the good of all constituents, as Brazil and GRULAC have been flagging in as many opportunities as necessary.

In brief, the Committee of Experts understands that the prevalence provision of collective bargaining, as provided for in article 611-A of Brazil’s Labour Code, is too generic and runs counter to the objective of promoting free and voluntary collective bargaining set forth in Article 4 of Convention No. 98, as well as Articles 7 and 8 of the Collective Bargaining Convention, 1981 (No. 154). The analysis by the Committee of Experts in this regard is flawed on at least three accounts:

(i) the Committee completely disregards the conditions that led to the said labour reform in 2017;

(ii) the Committee’s legal reasoning lacks any basis on the text of those Conventions; and

(iii) the evidentiary support used by the Committee is far from being thorough and unbiased.

Addressing the first flaw, I wish to point out that the Committee neglected to mention that, in Brazil, it was common in the past that the judiciary nullify labour clauses of collective agreements, or agreements in their entirety, without any objective legal reasoning. That situation created legal uncertainty and deeply disrupted the incentives for collective bargaining, leading to frequent complaints by trade unions and companies alike. Out of the 17,000 unions in Brazil, only one third had negotiated any kind of collective agreement, per year, before the labour reform. This is a rather dysfunctional system, choked by bureaucracy, and in desperate need for a new breath of life. Such issues became particularly pressing in a context of deep economic recession. An economy that condemns more than 40 per cent of its workers into informality, with an additional 12 million people out of jobs, resulting in two-thirds of its population being either in the shadow market or unemployed, without any social security protection. An economy like this cannot be seen as healthy in any way. By strengthening collective agreements, we open the possibility for each category to negotiate, collectively, the best terms to reconcile employment quality and increase of productivity, without affecting workers’ rights. Who am I, behind a ministerial desk, to decide what is best for each worker? Who are we, here in Geneva, to decide, what is the best package of more favourable rights and benefits for one single category in complex negotiations? We must allow workers and employers to take responsibility and decide what is best for their own future. Benefiting from other international experiences, however, the labour reform in Brazil did not invest in temporary contracts, which remain used by only 1 per cent of the labour force. Rather, it resorted to increasing legal certainty to reduce turnover rates, improve productivity and to promote better working conditions. In a comparative international perspective, the labour reform in Brazil approximates it to institutions in force in developed countries, where collective bargaining can negotiate over legal provisions for different subject matters. Moreover, our Federal Constitution enshrines 30-plus rights that cannot be subject to reduction or suppression through collective instruments or individual negotiation and include, among others, the value of the minimum wage; the 13th salary; maternity leave; vacation; minimum remuneration for extraordinary service. None of these items have been touched by the labour reform. Therefore, there can be no doubt that the sum of the relevant provisions in the Constitution and the Labour Code provides for a system that ensures a large range of rights, while allowing more open collective negotiations on the periphery.

On the second flaw of the Committee of Experts, despite Brazil’s arguments, that Committee simply reiterated its assumptions that Conventions Nos 98, 151 and 154 all contain a “general objective of promoting collective bargaining as a means of reaching agreement on more favourable terms and conditions of work than those envisaged in the legislation”. This assumption is simplistic and could be interpreted as paternalistic, especially in the Brazilian context. Also, such an interpretation finds no basis on the texts of those Conventions. The Committee of Experts does not address the criticism of the Brazilian Government on the inexistence of a textual ground for the Committee’s position and the inappropriate character of the recourse to “travaux préparatoires”.

As to the third major flaw in the analysis of the Committee of Experts, the report is prolific in references to non-specific, theoretical threats to the national labour system. The sole basis sustaining such references comes from unfounded inputs. As an example, the report uses expressions such as “labour productivity may have dangerous consequences”, or “it is possible to derogate”, or “legislation creates the conditions for downward competition”, “article 611 is likely to result” and “could act as incentive to corruption”.

The report also bases its assumptions on “first statistics” and on “various studies” which were never brought to the general public and scrutinized. These so-called “studies” are, in fact, newspaper articles or papers by a union-run and union-funded organization. Even the latter dedicated only a handful of paragraphs to the collective bargaining issue. All imputations made against Brazil stem from hypothetical analysis and suppositions readily received by the Committee of Experts, a body that should base its procedures in findings, not on speculations; a Committee that should always strive to work as an evidence-based mechanism and not to pass judgements on nations based on fragile information. Countries all over the world are basing the design of their public policies on readily available data and on analysis of regulatory impact. Solid technical grounds and economic studies should be the very minimum basis for any dialogue, positions or recommendations on countries’ policies and legislation.

It is enlightening to analyse a 160-page study on the labour reform and collective bargaining in Brazil, recently published by FIPE, a leading economic research institution linked to the University of São Paulo.

All in all, the Committee of Experts assesses that the data provided by the criticizers would indicate a decline in the number of collective agreements after the entry into force of the labour reform. This is not a surprise as parties adapted to a new, more responsible system. What is a surprise is the difference between the actual figures and what was claimed by the Committee of Experts. While the workers claim a 45 per cent reduction of the overall collective agreements in 2018, the actual figures are 13.1 per cent. In the first four months of 2019, when a phase of adjustment at a high level of the negotiated agreements began, the number of agreements rose by 7 per cent, bringing numbers roughly back to what they were prior to the labour reform, as demonstrated by FIPE’s study once again.

Therefore, negotiations did not experience an alarming decrease, as alleged by criticizers. More importantly, data shows the increase of negotiated clauses that establish more favourable conditions for associated workers. From a sample of 20 benefits, the FIPE’s study shows that 17 of them are more present in agreements now than they were before the labour reform. As intended, collective agreements are indeed covering a broader set of interests.

The Brazilian labour reform has also been evaluated and scrutinized by other international organizations. The World Bank, for example, issued a study called “Jobs and Growth: The Agenda for Productivity”, praising the reform’s positive incentives to correct labour market inefficiencies, while providing more opportunities for labourers, especially the poor and vulnerable. A second study by the World Bank called “Competences and Jobs: An agenda for the youth” indicates that the reform contributed to increase legal certainty, creates incentives to more responsive and responsible unions, while easing dispute resolution in the labour market.

The OECD and the IMF also praised the labour reform in Brazil and in their view the reform contributes to job creation and the diminishing of outrageous informality rates. These are all independent international organizations of renowned technical expertise. Certainly, a much more trustworthy source of information than one newspaper article.

In relation to the duty to conduct consultations, the Committee of Experts fails to indicate the relevance of the matter for the consideration of application of the Convention If at all, the Committee should address this issue in relation to the implementation of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), which is not under consideration.

The allegations on this matter are even more absurd. Since 2003, collective bargaining has been extensively discussed with the social partners in Brazil. In 2016, before the reform reached congress, the Government indeed undertook “prior consultations” with all the central unions before finalizing and sending to Parliament the bill that already contained the collective bargaining provisions. I must register: the bill was signed and sent to congress in a presidential event in the main executive building with the presence of all employers’ confederations and all but one of the central unions.

The two chambers of the Brazilian Congress held a total of 30 public hearings, with more than 120 specialists. Economists, lawyers, employers and the vast majority of the central unions participated in those discussions. Seven official regional seminars were also organized and dozens of private seminars, round tables and formal discussions were held throughout Brazil’s vibrant civil society, a testimony to freedom of speech and social dialogue. Solely in the lower house, around 100 representatives were union- or worker-related and, at last, the reform was approved in both parliament houses by a large margin of roughly two-thirds of the representatives.

Prior consultations, together with a strong parliamentary activity of all groups, attests to the legitimacy of the process and full compliance with the Convention. More than 2,000 amendments were presented to the bill within Congress. Various significant aspects of the bill have indeed been altered in the interest of society as a whole, resulting in Act No. 13467, as is normal and should be expected in any democratic country.

By the way, this is the same Congress that evaluated and ratified 97 ILO Conventions. Questioning the capacity and legitimacy of the Brazilian Congress to discuss a labour reform is questioning its legitimacy in ratifying ILO Conventions and we understand that this is not the Organization’s intent.

Of utmost importance is to note that around 30 judicial proceedings were presented to the Federal Supreme Court against points of the reform. None – I repeat, none – deal with collective bargaining. We call upon the necessary coherence and invite the criticizers to present their case to the Supreme Court, inquiring about the consistency of the labour reform with the Brazilian Constitution and with the Convention.

To conclude, considering that Brazil has ratified 97 ILO Conventions and that its performance in the context of the ILO’s supervisory mechanisms is exemplar; recognizing the labour code of Brazil is one of the most complete in the world and that labour rights are enshrined in the Brazilian Constitution; considering that accusations against Brazil were based on fragile information and that the Committee of Experts should be an evidence-based mechanism; taking into account that Brazil has presented technical studies from renowned research institutions and international organizations; and taking stock that labour modernization in Brazil is still going on through the scrutiny of the Supreme Court, Brazil requests this commission to correct this historical mistake and refrain from issuing further recommendations on the Brazilian labour reform, while registering Brazil’s full compliance with the Convention and the International Labour Organization.

Employer members – I would like to begin by thanking, on behalf of the Employers’ group, the distinguished Government representative for his detailed submissions in respect of the aspects of this case. As the Committee is aware, the present case concerns a fundamental Convention, Convention No. 98, and is related to the wider issue of the 2017 labour market reforms in Brazil. The Committee of Experts, has observed that the adoption of the labour market reforms was not compatible with Article 4 of the Convention. However, in the Employers’ view, the connection between the reforms and Article 4 of the Convention is weak; they are based on rather unfounded assumptions and flawed interpretations. In our view, there is no substantive issue with respect to Brazil’s compliance with the Convention.

In terms of process, the Employers note that last year there was a discussion about the breaking of the reporting cycle that occurred by the Committee of Experts, and our deep concerns that the reforms that were adopted in the Consolidation of Labour Laws (CLT), were adopted only on 13 November 2017, and so when the Committee of Experts assessed this case at that time, there was not sufficient information and experience to be able to properly do so.

We would also note that the 2018 conclusions of the Committee, requested that the Government provide information on labour market reform which was done. We also note that the 2018 Committee of Experts’ observations applicable to this session of the Committee, maintained its earlier assessment, which provides the Employers’ group concern, in that the Committee of Experts may not have properly considered the Employers’ position and the CAS conclusions. We will continue to work with the Committee of Experts to highlight these concerns in this regards, and at this moment I will ask another Employer member to provide the substantive aspects of the Employers’ submissions on this case.

Another representative of the Employer members – I will focus on commenting, one by one, on the points raised by the Committee of Experts in its 2018 observation.

First, with regard to the adoption of Act No. 13467 in Brazil, the Committee of Experts attempts to justify the early examination of the Act on the basis of the claims and information provided by Brazilian and international unions, without taking into account the divergent views of the Government of Brazil, Brazilian employers and the whole of the Employers’ group as expressed during the discussion of the case last year. This is a matter of concern to us.

Second, with reference to the relationship between collective bargaining and the law and sections 611-A and 611-B, we emphasize that we are not in agreement with the analysis of the Committee of Experts that these provisions are not in conformity with the respective Articles of Convention No. 98, nor with the request by the Committee of Experts for the Government to revise these provisions.

In the view of the Employers’ group, Article 4 of the Convention does not prohibit the law from authorizing changes being made to legislative provisions through collective agreements and establishing higher or lower levels of protection than those set out in specific provisions of the law. The levels of protection established by the law in this case are, de facto, not absolute, but must be considered in the light of the possibility that collective agreements may make changes for specific periods. Article 4 of the Convention is silent on the relationship between the law and collective agreements, and particularly on whether a law may authorize exceptions to its provisions in collective agreements. Nor is there any provision in Article 4 of the Convention under which the provisions of collective agreements must always be more favourable for workers than the provisions of the law. The sole objective that can therefore be attributed to Article 4 is to allow the social partners to negotiate, within the framework established by the law (which may include the authorization to establish exceptions to its provisions), more appropriate conditions (whether they are more favourable, more favourable in part or less favourable) for their members at the sectoral, regional, occupational or enterprise level.

Nevertheless, the question of whether the law may authorize exceptions to its own provisions through collective agreements, and the extent to which it may do so, is not regulated by Article 4 of the Convention. Nor is it important in the context of Article 4 of the Convention whether the authorization allows general or more restricted changes, as appears to be the case with sections 611-A and 611-B. Article 4 therefore simply does not address this issue, and it is as simple as that.

We are not in agreement with the Committee of Experts that the introduction of sections 611-A and 611-B does not adequately “promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations …” within the meaning of Article 4 of the Convention, for the following reasons:

(1) the right to collective bargaining of workers’ organizations is not affected by the changes to the law;

(2) Brazilian workers’ organizations are not impeded in any way from negotiating better conditions of work for their members;

(3) if employers make proposals that workers’ organizations do not consider appropriate, they are not obliged to accept them;

(4) the scope for voluntary bargaining has increased, as it is not only possible to agree to stricter standards, but also, for example, stricter standards in exchange for less strict standards in other areas (that are considered to be less important); and

(5) the argument of the Committee of Experts that there has been a significant decrease in the number of collective agreements does not appear to be an appropriate indicator to show that collective bargaining is not being promoted sufficiently: as the labour market reforms involved various legislative changes, the decrease in the conclusion of new collective agreements may have reasons that have no relation with the changes made to sections 611-A and 611-B and, moreover, as the coverage of collective agreements varies significantly from one country to another, there is no specific level of coverage that indicates compliance with Article 4 of the Convention.

It is therefore not a quantitative matter, but a qualitative question. Accordingly, the only thing that can be said here is that the Government, in consultation and cooperation with the social partners, can continue to observe the impact of the reforms which have only been implemented for a very short period and decide on the adjustments that it considers appropriate.

However, the Government is not required to make any changes in light of its obligations under the Convention, despite the requests made by the Committee of Experts. It should be recalled that, in its conclusions to the case in 2018, the Conference Committee only requested the Government to provide more relevant information and deliberately did not request the Government to amend the law.

We note with concern that the Committee of Experts (and in some ways the Office itself in its supporting role) has ignored the lack of tripartite consensus on this issue, as reflected in the conclusions of the Conference Committee in 2018, and is continuing to request the Government to amend the law.

I would now like to refer to the relationship between collective bargaining and individual contracts of employment. Firstly, with regard to the possibility envisaged in section 444 of the Consolidation of Labour Laws (CLT) for workers with higher levels of education and incomes to decide to negotiate freely their specific terms and conditions of employment (with the exception of the fundamental rights enumerated in section 611-B), we consider that this is a matter that is unrelated to Article 4 of the Convention. Article 4 of the Convention deals with the promotion of collective bargaining, not the relationship between the law and individual contracts of employment. We therefore consider that the views expressed by the Committee of Experts are completely outside the scope of the Convention under examination.

Moreover, section 444 refers to a group of workers which, in view of their higher education and incomes, their social condition and independence, appears in any case to be in a better position to negotiate individually and may be more interested in having the flexibility to negotiate their individual conditions of work. We therefore consider that the views of the Committee of Experts have no basis in Article 4 of the Convention.

In contrast with the affirmation by the Committee of Experts, Article 4 does not require employment contracts to set out terms and conditions that are always more favourable than those of collective agreements. Although it is clear the contracts of employment cannot establish exceptions to the applicable collective agreements based on their own legal status, they can do so when this is specifically authorized by the law. And Article 4 of the Convention does not prohibit the law from establishing such authorizations in specific cases.

The Committee of Experts also appears to consider that section 444 exempts the group of workers defined therein from the scope of application of the Convention. But this is not the case. These workers benefit from the full protection of Article 4 of the Convention, unless and to the extent to which they decide freely not to require such protection.

With regard to the scope of application of the Convention and the new definition of autonomous workers in new section 442-B, firstly we must make it clear that Article 4 of the Convention applies to “workers” and their organizations. The Government is fully justified in defining the term “worker” and in distinguishing between “workers” and “independent contractors”. It appears that in this context the Government is using the criterion of “subordinate position”, which does not appear to raise problems with objectives of Article 4 of the Convention. In this respect, we do not therefore agree with the analysis of the Committee of Experts and the corresponding request for the adaptation of collective bargaining procedures contained in the report, as it appears to be based solely on the general information provided by the unions, without any exhaustive examination of the issues involved by the Committee of Experts.

To conclude this analysis of the observations, I will refer to the relationship between the different levels of collective bargaining. We consider that section 620, which gives priority to collective labour accords, at the level or one or more enterprises, over collective agreements concluded at a broader level, whether they are sectoral or occupational, does not give rise to problems of conformity with Article 4 of the Convention or with any other ILO instrument, because:

- Article 4 of the Convention does not address the legal hierarchy of the various levels of collective bargaining;

- the Collective Agreements Recommendation, 1959 (No. 91), only refers to the relationship between collective agreements and individual contracts of employment.

I want to make it clear that more favourable clauses negotiated at the sectoral level will only be replaced by less favourable agreements in collective labour agreements in which:

- the enterprise level unions agree to conclude an enterprise agreement; and when

- the unions accept a less favourable clause.

None of this is automatic or evident. In any case, the unions are not required to do so.

Insofar as section 620 also allows less favourable clauses in labour accords and, accordingly, the negotiation of more favourable conditions in certain respects with less favourable conditions for others, it extends the scope of collective bargaining at this level. As section 620 makes collective bargaining more attractive and promotes it, in the view of the Employers’ group we consider that it is fully in compliance with the objectives of Article 4 of the Convention.

In light of the above, the Employers’ group sees no need to request further information from the Government on this latter aspect.

Finally, and with regard to the matters referred to in the 2016 observation, we consider that they should not have been raised in the form of an observation, but should have been included in a direct request for information from the Government concerned.

Worker members – This is the second time we are discussing the application of the Convention in Brazil. We discussed this case last year in the Committee and the year before Brazil was longlisted. The case of Brazil is indeed turning into a case of persistent failure to comply with ILO standards.

This is deeply saddening for the Workers’ group. After years of social progress, with millions of people lifted out of poverty, not only through solid social security measures but also the development of strong collective bargaining institutions, we are witnessing an almost unprecedented destruction of collective bargaining and other pillars of labour market institutions and democracy.

As we feared, Act No. 13467 amending the Consolidation of Labour Laws (CLT) has had a disastrous impact on collective bargaining rights and industrial relations as a whole.

Last year, our Committee made two main recommendations: first, that the Government provides information and analysis on the application of the principles of free and voluntary collective bargaining in the new labour law reform; and second, that the Government provide information on the tripartite consultations with the social partners regarding the labour law reform.

The Workers’ group recalls that a new section 611-A of the CLT completely inverts the hierarchy between the law and collective bargaining. It establishes a general principle that collective agreements and accords prevail over the legislation, except for 30 constitutional rights referred to in section 611-B of the CLT which cannot be derogated. Similarly, under section 620 of the CLT as amended by Act No. 13467, more favourable clauses negotiated at the level of sectoral activity of occupation are replaced by less protective clauses negotiated at the enterprise level.

Last year, the Workers’ group strongly deplored the severe shortcomings and flaws of these provisions. We warned against the irreversible undermining of the legitimacy of collective bargaining in the long run. These provisions are a frontal attack on the principle of free and voluntary collective bargaining established in Article 4 of the Convention. We recall that the general objective of promoting collective bargaining is to reach agreement on more favourable terms and conditions of work than those envisaged in the legislation or in clauses negotiated at a higher level. This is stipulated in Conventions Nos 98, 151 and 154, which, by the way, have all been ratified by Brazil.

The amendments introduced by Act No. 13467 have a strong dissuasive effect to collectively bargaining and create the conditions for downward competition between employers in relation to terms and conditions of employment. The Government of Brazil argued last year that the amendments were called by the economic recession and that time would prove that the changes would have a positive effect on employment and industrial relations. A year on, we can only take note of the catastrophic impact of Act No. 13467 on collective bargaining and unemployment in Brazil. According to official data from the Brazilian Institute of Geography and Statistics, as of April 2019, unemployment has reached 12.5 per cent of Brazilians, that is 13.2 million unemployed workers, which represents a 4.4 increase compared to December 2018. Collective bargaining coverage has dropped by 39 per cent. Basically, this Act has increased unemployment. The consequences of this Act by Brazilian workers have been devastating for working people.

Furthermore, we reject the Government’s arguments addressed to the Committee of Experts that the amendments provide greater legal security. Evidence shows that the new CLT provisions restrain collectively bargaining as an instrument for improving conditions of work. They also leave trade unions subject to threats and pressure to accept derogation and act as an incentive for corruption in collective labour relations. This is because the new CLT provisions allow all trade unions, irrespective of their level of representativity, to negotiate below the level of legal protection. We denounce, as the Committee of Experts does, the reversal of the hierarchy of norms operated by sections 611-A and 620 of the CLT. We also denounce the very extensive possibilities for derogation from higher, more protective norms opened up by these sections of the CLT.

We recall the two principles that underpin the Convention. And these principles are reaffirmed in Recommendation No. 91: the principle of free and voluntary collective bargaining; and the binding nature of collective agreements. Sections 611-A and 620 of the amended CLT are contrary to these principles.

We are extremely concerned by the Government’s disregard for the disastrous effects that Act No. 13467 has already produced on workers in Brazil. These negative effects will even further worsen if no immediate action is taken to repeal those regressive amendments. Therefore, we strongly urge the Government of Brazil to carry out an immediate review of the CLT, in consultation with the social partners, with a view to repealing sections 611-A, 611-B and 620 of the CLT.

Furthermore, we must once again express our deep concern about the new section 444 of the CLT. This section provides for the possibility to derogate from the content of collective labour agreements in individual contracts of employment for workers with a higher education diploma and wages that are at least two times higher than the ceiling for benefits under the general social security scheme.

In its report to the Committee of Experts, the Government seeks to minimize the impact of the provision by arguing that it would only apply to a very small proportion of workers, around 2 per cent. Such reasoning, even if proven accurate, does not exonerate the Government from applying the Convention, including the objective of promotion of collective bargaining set out in Article 4. Certainly, it does not allow the Government to create new categories of workers that can be excluded from the benefit of the Convention.

We urge the Government of Brazil to take, without delay and in consultation with the social partners, the necessary measures to restore the principles of the binding effect of collective agreements and their primacy over individual contracts of employment where the latter are less favourable.

We also reiterate our concern regarding the extension of the definition of autonomous and self-employed workers under new section 442-B of the CLT. A significant number of workers are now excluded from the rights set out in the Convention.

We recall that over 23.9 million workers are self-employed in Brazil, a 4.1 per cent increase since April 2018. In addition, 11.2 million workers are in the informal economy, with no legal protection against abuses, that is an increase of 3.4 per cent since 2018.

We join the Committee of Experts in affirming that the right to collective bargaining also covers organizations representing self-employed workers. All necessary measures must be adopted to ensure that autonomous and self-employed workers are authorized to participate in free and voluntary collective bargaining.

Finally, we call on the Government to address without delay the shortcomings and legislative gaps regarding the following points:

- adequate protection against anti-union discrimination;

- compulsory arbitration in the context of the requirement to promote free and voluntary collective bargaining;

- the right to collective bargaining in the public sector; and

- the subjection of collective agreements to financial and economic policy.

We also remind the Committee that Act No. 13467 was adopted hastily and without prior genuine and meaningful consultation with workers’ organizations. In that regard, we note the concern expressed by the Committee of Experts with regard to the absence of a structured process of tripartite social dialogue intended to develop agreement on the content of the reform. Social dialogue cannot be substituted by some public hearings organized within the Parliament in the presence of trade unions and employers’ organizations. The Government must engage the social partners in genuine negotiations within the framework of the national tripartite body. Such negotiations should urgently focus on reviewing the amendments introduced by Act No. 13467 and repeal all the provisions of the CLT that are not in line with the principles and provisions of the Convention.

We have brought these issues to the attention of the Committee last year and the Committee of Experts has meanwhile made further comments.

Moreover, since our last discussion of this case, there has been a change in the Administration. However, not so much in the policy and attitude. It has been publicly proclaimed that Brazilian workers will from now on have to choose between rights or a job. The Government claims that both will not be possible and therefore makes it clear that it has no intention whatsoever to give effect to the rights enshrined in the Convention. This is completely unacceptable, and we as workers will not remain silent. If the Government refuses to engage with us constructively, it will force us to make our voices heard on the streets and in the workplaces.

Yesterday, 45 million Brazilian workers in over 300 cities did exactly that during the general strike that has been led by trade unions, social movements and the general population – all outraged with the stripping of the protections they enjoyed over the past 20 years. We urge the Government to take this signal very seriously.

Clearly, the Government is unhappy about having to appear before the Committee and to listen to the voices from all over the world. But its real challenges will have to be to really listen to the voices of its own workers and population.

Employer member, Brazil – At the outset, we recall that last year the same case was examined by this Committee on the same basis, namely a supposed violation of the Convention. On that occasion, it was recognized that there was no element that was not in accordance with the Convention and the only request was for more information, which has been provided. There has not therefore been any new fact justifying a further discussion of the case, which therefore leads us to analyse the context and motives for the inclusion of Brazil on the shortlist and to ask ourselves why we are here?

We will therefore analyse the allegations which have led to Brazil once again having to provide this Committee with information. Let us begin with the interpretation by the Committee of Experts that bargaining should only occur to offer benefits to workers over and above those provided for by law.

During the examination of the case of Brazil in 2018, we expressed concern at the adoption of broad interpretations of Conventions by this house. The spirit of the Convention is that free and voluntary bargaining affirms the will of the parties, and the Constitution of Brazil endorses the Convention by recognizing collective bargaining as a social and labour right, thereby reinforcing its commitment before the constituents to the principles of the instrument.

What raises questions for us is whether this broad interpretation prevails in guiding the application of the Convention in my country, what precedent will be set for the over 160 countries that are signatories to the Convention, how will future analyses of collective bargaining be applied throughout the world, are we to change the rules of the game, is collective bargaining about to become a tool for unilateral concessions, and does it no longer retain its essence, which is the common adaptation of terms and conditions of employment and reciprocal concessions?

The repeated intention to examine Brazilian legislation through the lens of these arguments once again raises doubts. We are no longer hearing what criteria have been adopted, or are political criteria to the detriment of the analysis required from the viewpoint of technical criteria? If this is the case, it should be recalled that this house is essentially a technical organization and that it must never be diverted from this vocation.

In any case, I must speak to the labour reform in Brazil, which is under discussion today, and which was above all a country reform. It was through this reform that Brazil left behind antiquated legislation from the last century and aligned itself with the main economies in the world. It was also through this reform that it strengthened the voices of workers and employers so that together they could establish their terms and conditions of employment, with minimum interference from the State.

The unfounded allegation is made that Brazil, by establishing the prevalence of collective bargaining to regulate employment relationships, has adopted legislation that is contrary to the Convention. Article 4 of the Convention, it has to be said, is crystal clear in providing that countries shall take “[m]easures appropriate to national conditions … to encourage and promote the full development and utilisation of machinery for voluntary negotiation” for “the regulation of terms and conditions of employment”.

Moreover, Convention No. 154 provides in Article 2 that collective bargaining is for “determining working conditions and terms of employment” and/or “regulating relations between employers and workers”. There is also no room for doubt in Article 5 that measures adapted to national conditions shall be taken. This is so that collective bargaining can facilitate all issues relating to the determination of conditions of work and employment with a view to regulating employment relations. In this sense, the Committee on Freedom of Association has emphasized on several occasions, which we highlight here, that it is necessary to develop and promote the full use of negotiation with minimum interference by the State.

In Brazil, the National Congress, following discussions with the social partners, set out limits and possibilities for collective bargaining. This was done to allow Brazil to overcome a situation of insecurity for social dialogue, which took the form of the repeated annulation, sometimes arbitrarily, of collective instruments concluded freely and voluntarily.

This situation was resumed as follows by the Supreme Constitutional Court of Brazil, I quote, “the systematic invalidation of collective labour accords based on a logic of limiting the autonomy of will exclusively applicable to individual labour relations must not be endorsed. Such interference is in violation of the various provisions of the Constitution which promote collective negotiations as an instrument for the resolution of collective disputes, as well as denying employed persons the possibility to participate in the formulation of standards which regulate their lives.”

What happened then is that Brazil established mechanisms adapted to its conditions, at a time when legal insecurity prevailed.

It should be emphasized that Brazil does not grant, in any form, authorization to derogate from labour legislation by means of the prevalence of collective instruments. There are clear temporal and material limits. In temporal terms, the collective instrument has a maximum duration of two years when negotiations do not take place, which means that, in the absence of a collective clause, the terms and conditions set out in the ordinary law and the Constitution prevail fully.

Moreover, there is an extensive list of matters that cannot be subject to negotiation, either to reduce them or to suppress them, such as the level of the minimum wage, maternity and paternity leave, 30 days of annual leave, safety and health standards, among the over 40 guaranteed rights. There is therefore no real basis for claiming that the primacy of collective bargaining over the ordinary legislation, as applied in Brazil, is in violation of the Convention.

With regard to individual bargaining, it should be emphasized that the new rule permits employees with higher education and high levels of remuneration to negotiate their rules of employment. In the current labour market, this affects 0.25 per cent of the Brazilian population, or 1.45 per cent of formal employed persons.

The Brazilian option was to maintain these workers within an employment relationship, but also to increase their bargaining capacity, while guaranteeing all the rights and protections. Or, in other words, this is also in accordance with the Convention.

For all of these reasons, I reaffirm that Brazil places upon workers and employers the great responsibility of engaging in negotiations, within well-defined limits, and limiting the scope of intervention of the public authorities in collective bargaining, in line with the Convention.

In other words, the labour reform in Brazil:

(i) applies the Convention by establishing free and voluntary negotiation between workers and employers;

(ii) protects collective bargaining from external interference;

(iii) consolidates effective machinery to confront economic adversity, in line with international trends in this respect;

(iv) brings Brazil into line with other member States of the ILO; and

(v) principally, through the new formula which permits the negotiation of working conditions that are different from those set out in law, with the exception of all the labour rights established in the Constitution, makes the principle of freedom of negotiation compatible with and balances it with the protection of workers.

Finally, it must be said that this issue was not exhausted before the national legal bodies in Brazil before being brought to the ILO for discussion. None of the unions lodged an appeal with the Constitutional Court of Brazil indicating any violation of the Constitution, the Convention or any other ILO standard to challenge the new model of collective bargaining. Why is no one challenging this? It is true that some cases have been brought to the Supreme Federal Court, but they are challenging other matters than those that are being examined here and now. In reality, it appears to us that the unhappiness is only due to the fact that the contribution of trade unions has become optional, but this subject is not covered in the comments of the Committee of Experts.

We Brazilian employers have great hopes that this house, the home of dialogue and tripartism, in its Centenary year, will only examine specific facts and technical matters, and that this Committee will conclude definitively that the labour reform in Brazil is in line with the Convention.

Worker member, Brazil – We are here today to discuss the process of the formulation and the harmful effects of the labour reform in Brazil, Act No. 13467 of 2017, and the manner in which Brazil has been in reiterated violation of the terms of the Convention. The labour reform in Brazil was adopted with the promise of modernizing labour relations, generating employment, promoting more and better collective bargaining and combating informality. None of these promises have been kept!

In 2017, even before the adoption of the Act, we indicated our concerns to this Organization. The report of the Committee of Experts that year drew attention to the possible impact of the reform and recalled that in accordance with the interpretation of the Convention, together with Convention No. 154, collective bargaining has the objective of improving social protection, never reducing it!

In 2018, the case of Brazil was examined by this Committee and both the Government and the Employers argued that there was no violation of ILO standards, that Act No. 13467 promoted more and better collective bargaining and that the absence of data prejudiced any analysis of the case.

And today, two years after the adoption of the Act, what are the results?

According to the latest survey by the Brazilian Institute of Geography and Statistics (IBGE), an official government body, the unemployment rate in Brazil rose to 12.5 per cent of the economically active population in the first quarter of 2019, compared with 11.8 per cent in the last quarter of 2017, when the Act came into force. That is, since the beginning of the labour reform, there has been an increase of around 1 million unemployed Brazilians. Informal work rose by 4.4 per cent in comparison with the first quarter of 2018 and the number of discouraged workers (those who were no longer seeking employment) reached record levels.

According to the Institute of Economic Research Foundation (FIPE), related to the University of São Paulo, one of the most respected in Brazil, between 2017 and 2018, there was a decline of 45.7 per cent in collective bargaining as a direct result of the labour reform. That is, from one year to the next, almost half of collective bargaining coverage and protection simply disappeared.

The vertiginous fall in the number of collective negotiations is compounded by the possibility of workers individually being compelled to give up rights guaranteed by collective agreements and accords, of an accord revoking clauses that are more beneficial for workers, and the existence of precarious contracts, or contracts that seek to conceal the employment relationship. All of this in practice means the withdrawal of rights.

Act No. 13467 was an unprecedented reversal of the hierarchy of labour rules. Instead of building a growing chain of protection, in which the law is the low basis on which agreed rights are constructed through collective bargaining, this logic is turned on its head to allow even an individual accord to prevail over the law, and over collective accords and agreements, in clear violation of the Convention. For us, this Act is a return to the types of labour relations of 100 years ago and is a disaster in the quest for social justice.

And yet this is not everything. There is currently a veritable persecution of trade unions with the objective of diminishing our capacity to act and to engage in free and voluntary collective bargaining.

In March this year, the Government, without any tripartite consultation or social dialogue, adopted Provisional Measure No. 873 (a Presidential Decree with the force of law) which prohibits employers and workers from negotiating freely the financial dues approved by assemblies. This is a tremendous contradiction with the promise to promote free bargaining between the parties. It is impossible to strengthen collective bargaining in a country where the law prevents workers and employers from establishing freely the terms of trade union financing.

We are denouncing here the complete absence of social and tripartite dialogue in this process, despite all the recommendations and observations made by the Committee of Experts over the past three years.

In the 2019 report, on page 60 of the English version, the Committee of Experts requests “the Government to take the necessary measures, in consultation with the representative social partners, for the revision of sections 611-A and 611-B of the CLT so as to specify more precisely the situations in which clauses derogating from the legislation may be negotiated, as well as the scope of such clauses”. Our question is whether any tripartite meeting was held to address the requests of the Committee of Experts and, if so, when, where and who participated.

In fact, the practice of the Brazilian Government in recent years has been to abolish or void of their content tripartite institutional bodies, such as the National Labour Council, which has never met since. The lack of respect for social dialogue in the country is so serious that the Government has recently abolished, without any consultation, the National Commission for the Eradication of Slave Labour and the National Council for the Rights of Persons with Disabilities, both of which were tripartite in composition. The abolition of these bodies is so absurd that, in our view, it can only be part of the policy of the President of the Republic who, more than once, has said that Brazilian workers will have to choose between having work and having rights, because it is impossible to have both. Moreover, the Government has abolished the Ministry of Labour itself.

Another fallacious argument that we rebut is that there are no specific cases of the violation of the Convention, or the withdrawal of rights following the adoption of the labour reform. We could cite innumerable cases, but we will confine ourselves to two:

– a private university present throughout Brazil, days after the entry into force of the labour reform, dismissed over 1,200 professors with the intention of rehiring them with lower wages and without the protection of a collective agreement;

– at the beginning of this year, aircraft pilots were surprised by an individual contract drawn up by their employers in which they had to agree to renounce the rights envisaged in collective accords and agreements. Such attacks on the workers were not carried through solely as a result of the intervention of the courts. We wish to indicate here that innumerable cases are before the labour courts in the country.

This Conference is commemorating the Centenary of the Organization and serves as an occasion to reflect on everything that the ILO has been able to build for peace and social justice. We are here in the hope that this Organization will continue to fulfil its role. It is a matter of great concern and disappointment that Government and Employer representatives do not recognize the value of the ILO and the system of standards in the development of the balance that is required for world peace. Attacking the system of ILO standards at this time is tantamount to attacking the Organization itself and multilateralism. We Brazilian workers are taking another path, the path of strengthening the ILO, the standards system, the Committee of Experts and multilateralism.

We know that tripartite social dialogue is the cornerstone of this Organization. We have always been open to dialogue and it is precisely the lack of such dialogue that has brought us here today. The Organization has a fundamental role to play as a mediator. In this sense, we request ILO support with a view to reopening social dialogue in Brazil, where it is now completely inexistent. We emphasize that public hearings by Parliament is not tripartism. As in 2018, we will make available to the Committee of Experts all of the information referred to here.

Government member, Argentina – The significant majority of the States of the Group of Latin America and Caribbean Countries (GRULAC) thanks the Government of Brazil for presenting its information and arguments to the Committee on the Application of Standards. We wish to emphasize, once again, our concern and disagreement at the working methods of this Committee and the misuse of the ILO supervisory machinery. In the present case, we are seeing once again how the legitimacy of that machinery, its capacity to generate social dialogue and its results in practice are being seriously affected by a total lack of transparency, objectivity, impartiality and balance in the selection of cases and their treatment within this Committee.

The ILO is intrinsically based on tripartism. Nevertheless, we are seeing how every year GRULAC countries are indiscriminately subjected to international exposure by an exclusively bipartite consultation mechanism, without the participation of Governments, in which, as we all know, political agreements are reached that have nothing to do with the specific situation.

Countries are condemned before they have defended themselves. As a result, the lists of the Committee on the Application of Standards are losing their value and their capacity to inform international society of the real situation of labour relations around the world.

With reference to the comments of the Committee of Experts on the application of the Convention in Brazil, we regret that the Committee of Experts, without objective or clear reasons for doing so, has once again chosen not to wait for the regular reporting cycle for the Government of Brazil in relation to the application of the Convention, which was due this year.

By acting in this manner, the Committee of Experts has once again issued views without specific data, without factual evidence and without having a broader and more complete view of legislation that is complex and still in the implementation phase by the Brazilian authorities, and is under review by the judicial authorities in the country.

We are also concerned that sufficient attention is not being given to the characteristics of the Brazilian legal system which, according to Brazil, affords broad constitutional guarantees for labour and social rights.

Let us recall that, in accordance with its mandate, the Committee of Experts should review the application of Conventions in law and practice, taking into account the different contexts and legal systems, which it has not done in the present case.

Our region continues to be committed to the promotion of collective bargaining on the basis of the principles set out in the Convention. We note the information provided by Brazil that the central objectives of the labour reform include the promotion of collective bargaining, in accordance with the obligations of the country in the context of the ILO.

Government member, India – We thank the Government of Brazil for providing the latest comprehensive, detailed update on this issue. India welcomes the continuing willingness and commitment of the Government of Brazil, to constructively engage with the ILO and the social partners to fulfil its labour obligations. We take positive note of efforts of the Government of Brazil to reform its labour laws in consultation with the social partners and in accordance with its international obligations, as well as national context.

We do not support the inclusion of any country in the preliminary or final list of cases before the end of the reporting cycle deadline and without following due process and for reasons other than the technical merits of a case. We also wish to reiterate the need for constructive tripartite engagement, through a transparent, inclusive, credible and objective ILO supervisory mechanism and process, which is aimed at improving compliance with international labour standards and for its continued normative relevance in the world of work. We wish the Government of Brazil all success in its endeavours.

Employer member, Colombia – I want to refer to two aspects. The labour reform in Brazil is the result of broad discussions held with the social partners for over 20 years. In 2003, a report was submitted to the National Labour Forum with the participation of trade union confederations, employers and the Government and tripartite dialogue meetings continued to be held focused on consulting the social partners in which the principal guidance was expected from workers. The subject was referred to the National Congress through a Bill and not provisional measures, as proposed by the Government. In Congress, ten broad public hearings were held on specific themes in the Senate and the Chamber of Representatives, with another 20 meetings also being held. Specific subjects were discussed, such as collective bargaining, methods of resolving disputes, intermittent work, telework, temporary work and legal security. Over 2,000 amendments were proposed by various social groups and the most diverse ideological trends through a broad democratic process with the legal framework.

The Act seeks to improve industrial relations in Brazil by adapting the law to the new realities, always on the basis of collective bargaining. The intention of the labour reform is to establish more conducive conditions for competitivity, productivity and economic and social development with fundamental labour rights and decent work.

The labour reform in Brazil does not offer blanket authorization to derogate from labour law through collective bargaining, as has been claimed. In Brazil, labour rights and guarantees have constitutional rank, in the sense that collective negotiations are subject to the time and material limits imposed by the Constitution. The reform sought to reduce interference by the Brazilian authorities.

Secondly, the new legislation sets out a clear definition of who are considered to be autonomous professionals and the requirements for their identification. A clear distinction is made between the latter and employed persons. The two are completely different. As their name implies, by being self-employed or autonomous, these workers are governed by different rules than those pertaining to employed persons, and in both cases decent work is respected.

These differences of the concepts and legislation respecting autonomous work are necessary and have already been adopted in many States. Nevertheless, what is important in relation to the present case is that this regulation has maintained the right to organize and to collective bargaining. The provisions of the Act to not represent exclusion from the scope of the Convention, as in Brazil the Constitution ensures that all workers have the right to organize and to benefit from trade union rights.

The reform sought to reduce interference by the Brazilian authorities and therefore its scope is fully in accordance with ILO Conventions, and particularly with the present Convention.

Worker member, Argentina – I am speaking on behalf of the Confederation of Workers of Argentina (CTA Workers) and, by delegation, the General Confederation of Labour (CGT) and the Confederation of Workers of Argentina (CTA Workers). The labour reform adopted by Brazil in 2017 affects all the principles which gave rise to the ILO and are set out in its Constitution. Its results are tangible: the coverage of collective bargaining is being significantly reduced; the regulation of labour relations is moving ever closer to individualization; the race to the bottom for workers’ rights is being exacerbated; and, finally, social dialogue has been voided of content as it is no longer based on one of its essential elements, its voluntary nature.

In practice, legislation is compulsory when there has been no prior tripartite debate leading to agreements that supplement collective bargaining. It is telling that we are discussing these issues in the Centenary Conference of the ILO. Will this be the model of regulation on offer for the next 100 years? Nothing good will come of that.

Let me summarize the principal issues in Brazilian legislation in relation to collective bargaining as a basis for a global analysis:

- the reform allows collective agreements and accords to derogate from the minimum rights set out in the labour legislation;

- it promotes the centralization of bargaining by providing that enterprise agreements prevail over branch agreements;

- it facilitates the negotiation of individual contracts, which prevail over collective accords;

- it prohibits the inclusion of clauses to maintain the effects of collective agreements if they are not renewed when their validity has expired;

- it broadens the concept of autonomous or self-employed workers with a view to their exclusion from the scope of this fundamental law.

The application of these provisions completely undermines the obligation to promote collective bargaining under the terms of Article 4 of the Convention. It is a system that eliminates all safeguards intended to promote an improvement in workers’ rights. In view of this model, what is happening is logical: a substantial reduction in the volume of collective agreements and accords. If the power of employers becomes the sole source of regulation, why would they promote collective bargaining? The argument continues to be the cost of labour as an obstacle to investment, and that lowering costs necessarily generates employment and increases investment and competitivity.

But, this way of presenting the problem obliges us to accept an ethically unacceptable dilemma: accepting precarious employment which can hardly be classified as decent work. We cannot calmly accept a working day of 12 hours without conjuring up the memory of the Chicago martyrs. We could not look our colleagues in the eye and convince them that work after the working day is not considered overtime and is not reflected in their pay. We could not feel satisfied and endorse the legalized fraud of workers who issue bills as self-employed workers. We would be ashamed as leaders if we accepted piecework without the guarantee of minimum earnings.

Collective bargaining in Brazil is losing weight and meaning as a tool for the regulation of terms and conditions of employment, as set out in the Convention. One of the essential characteristics of collective bargaining is its collective roots, which are then converted into a compulsory legal standard. The bipartite quest for the common good is essential in order to achieve that, but is prevented by the contents of this law.

The attack on collective bargaining through the labour reform in Brazil is far from being confined to its national border. Indeed, its provisions challenge the model of industrial relations designed by the ILO as its central task. Overturning this reform is key to the debate on the future of work, which is still pending.

Government member, Algeria – Algeria supports the statement by the Federative Republic of Brazil concerning the Convention and the issue of collective bargaining. We have taken good note of the information provided according to which the labour reform in Brazil has the objective of promoting collective bargaining.

Algeria fully supports the position of Brazil and recalls the important role of the supervisory bodies in evaluating compliance with international labour Conventions by drawing attention to both the need for a basis of transparent rules and clear interpretive mechanisms for the effective application of international labour standards.

Algeria considers that the economic and political situations of certain countries are frequently not adapted to the interpretations of the supervisory bodies, which justifies the complexity and flexibility of international labour standards, including the present Convention.

Brazil has ratified a significant number of international labour Conventions, which is not surprising, as Brazilian labour legislation has reached an evolved stage and certain ratifications have enshrined practices that were already established.

Finally, we consider that the provisions of Act No. 13462 of 2017 are in conformity with the Convention. The right to collective bargaining could not develop spontaneously. Collective agreements and accords are tools that are intended, in global terms, to bring improvements for both employees and enterprises. The law may set certain limits on contractual autonomy in the world of work, taking into account national requirements. In that light, the articulation between the scope of public order and the limits of expression in collective labour agreements and accords appears to us to be coherent with the objectives and provisions of the Convention.

Employer member, Argentina – We are here to express our support for Brazilian employers in their defence of the value of a standard which sets the hierarchy for collective bargaining and, as we have affirmed, is an essential tool to guarantee decent work in the country. Incentives for social dialogue and the appreciation of collective bargaining have always been important objectives in this Organization, as they encourage consideration of the interests and concerns of the social partners by preserving the freedom of employers and trade unions to negotiate.

In the same way as many other countries in the world, Brazil has travelled along a specific path characterized by continual transformations in the world of work and production.

The adaptation of the system of rules governing these relations became a necessity, an enabling institutional response, to ensure that the dynamism of industrial relations has a correlation in rules that can offer adequate protection in the real industrial relations situation.

It is necessary to recall that collective bargaining is an instrument of mutual concessions and gains which allows the negotiation of more appropriate rules for each sector, region, occupation and enterprise.

And yet, the Act under discussion does not make collective bargaining compulsory, but only regulates industrial relations based on the free and spontaneous decisions of enterprises and unions. On the one hand, the reform is intended to reduce interference by the public authorities in the will of the parties, in conformity with the principles of the Convention.

In this context, assessment of the elements which resulted in the inclusion of Brazil on the list for the second successive year becomes necessary. In order to ensure the transparency and hierarchy of the supervisory system that this Committee safeguards, we consider it necessary to recall that the mission of this Organization is to be an instrument of peace and to maintain harmonious relations between employees and employers. Bringing forward this case for discussion for the second successive year is giving rise to conflict and runs counter to the purpose of the supervisory system. Under no circumstances must it be permitted that the cases proposed for analysis by this body are based on speculation concerning the domestic political situation of a country.

Finally, we hope that the conclusions of this Committee will be very positive and appropriate, which would be to value collective bargaining and social dialogue as the most effective instrument for resolving the issues that may arise out of the natural conflicts of interest that are characteristic of industrial relations and labour, thereby ensuring lasting social peace.

Observer, International Trade Union Confederation (ITUC) – I am speaking on behalf of all African workers. This period, in light of the provision of the Convention, are meant to enhance national legislation and not the other way around. The point here is that the national labour law reform that brought about the CLT attempts in some ways to undermine the provision of the Convention.

This is why different interpretations are conjured to collective bargaining processes, to the extent that the relationship between collective bargaining and the law is not advancing the real and unambiguous intentions of the provisions of the Convention. Like the Committee of Experts has observed, the current collective bargaining practices have introduced the general principle that collective agreements and accords prevail over legislation, and it is therefore possible through collective bargaining to derogate from the protective provisions of the legislation.

From our experience in Africa, where there are multiple layers of collective bargaining, especially where enterprise and sectorial, as well as national collective bargaining processes are engaged, the tendency for legislation to create the condition for downward competition between the employers in relation to terms and conditions of work and employment, has shown to be very harmful to industrial relations. It is clearly undermining the practice of collective bargaining as an instrument for improving conditions of work.

This practice is dysfunctional to collective bargaining. It can harm workers, especially those at the enterprise level and review downwards their benefits. This much the Committee of Experts observed in their copious reference to the report of the Public Ministry of Labour that showed that in the specific context of the collective labour relations in Brazil, the principle set out in section 611-A of the CLT is “likely to result in trade unions being subject to threats and pressure to accept derogations from the legislation, and to authorize all trade unions, irrespective of their level of representativity, to negotiate below the national legal protection, which will act as an incentive to corruption in collective labour relations”.

For us in Africa, we were excited and encouraged that such understanding on how you use progressive collective bargaining processes to enhance pay, morale, and industrial harmony, is exactly what the Lula Da Silva Government introduced and encouraged. We fondly refer to this as “Lula Movement”, which is partly responsible for taking millions of people out of poverty, including workers.

The Government of Brazil should be encouraged to reverse provisions of the CLT that run contrary to the provisions of the Convention and this should be done through a genuinely consultative process and in good faith, carrying along all the tripartite partners.

Government member, China – The Chinese delegation listened carefully to the statement made by the representative of the Brazilian Government. We noted that the reform of the Brazilian labour system is designed to promote collective bargaining as an essential goal. We appreciate the Brazilian Government’s commitment to promote collective bargaining. The Chinese delegation believes that, at the important moment when the ILO celebrates its 100th birthday, it should earnestly implement the action plan for reforming the standards of the provision mechanism, continuously improve its productivity, impartiality and transparency. It is reasonable for the Brazilian Government to closely integrate its own national conditions and legal system in a process of implementing the right to organize under the collective bargaining Convention. We hope that the ILO will provide the necessary technical support for the Brazilian Government to implement the relevant Conventions.

Employer member, Costa Rica– In support of the employers in Brazil, I would like to start by indicating that the comments of the Committee of Experts in relation to sections 611-A and 611-B of the Brazilian law are based on an interpretation of the Convention that is not borne out in any way by its provisions.

There is no provision in the Convention which provides that the objective of collective bargaining is to obtain agreement on terms and conditions of work that are more favourable that those set out in the national legislation. More specifically, Article 4 does not envisage any limitation on collective bargaining in the sense that it can only result in more favourable conditions than those established by law. The same applies to Convention No. 154. In reality, those Conventions explicitly provide for the possibility of adopting measures that are adapted to national conditions. In a changing world and in light of new forms of employment, it is important for laws to safeguard the freedom of the parties to adapt to change and modernization.

This is precisely what is envisaged in the Convention and in the innovations in Brazilian legislation on the bargaining of conditions of work and of employment.

Observer, IndustriALL Global Union – This is the second and consecutive year that Brazil is under CAS supervision for its Government’s violations to the Convention. The Brazilian Government continues to systematically ignore and not implement any of the Committee of Experts’ recommendations especially those related to Article 4 of the Convention. The Global Union would like to place on record their deep respect for the work of the Committee of Experts. These eminent legal scholars carry out their mandate to provide impartial and technical analysis of international labour standards with the utmost rigour. We thank the Committee of Experts for helping ensure countries effectively implement the Conventions they ratify, especially those States that wantonly flout their international obligations.

Since 2008, we have seen lots of labour reforms around the world, especially in European countries. The result was less coverage of collective bargaining, greater share of precarious work, lower wages and growing unemployment. That is exactly what Brazil has been experiencing in the last two years since the labour reform, reaching the alarming figure of 13 per cent of unemployment and 54 per cent of informal work.

As pointed out by the Committee of Experts, new section 611-A of the Brazilian Consolidation of Labour Laws Act has catastrophic consequences for workers. In the aviation and maritime sectors, derogations allowed by section 611-A can interfere and slash sector-specific safety standards, including flight and sea time limitations and minimum rest periods. Some of these vital protections derive from ILO Conventions. The safeguards contained in section 611-B are simply not sufficient. Moreover, even ILO Conventions are not protected, and it is possible that collective bargaining will derogate from their application as well.

Furthermore, the rights of Brazilian civil servants to collective bargaining was restricted by a recent presidential veto to Law No. 3831 even after ILO Convention No. 151 was ratified by the Congress of Brazil. The Bill was in fact built by consensus and unanimously approved by the Federal Senate and the Chamber of Deputies in Brazil.

If the aim of the labour reform was to promote collective bargaining, the result has been the opposite. In the Centenary of the ILO, we should be celebrating successes and achievements, but at the same time, we as constituents have the obligation of not closing our eyes to regressive violations and make sure to bring Brazil’s legislation into conformity with the Convention.

Government member, Russian Federation – First of all, we would like to thank the distinguished representative of the Brazilian Government for his comments on the case and also for what he said about the procedural aspects of it. Brazil has been steadily working to improve its mechanisms for implementing the Convention. We welcome the attachment of the Government to moving forward tripartite cooperation in accordance with its international obligations towards the International Labour Organization. We understand the concern of the Brazilian authorities about certain methods of work followed by the supervisory bodies of the ILO. Thanks to tripartite efforts, recently, decisions have been taken in this respect, including concerning work in the area of standards. Work to improve these standards-related procedures in our opinion needs to be continued. Generally speaking, we have doubts about reviewing this issue in the Committee and we do hope that, in the future, we will not have to return to it again.

Employer member, Algeria – The case that we are examining today concerns Brazil and a Convention that certain accuse the country of undermining. We should refer to the statement by the Government of Brazil, recalling that this case was examined by the Committee last year, and on the same grounds. It was recognized by this same Committee that there was no element indicating a violation of the Convention.

As an Employer member of this Committee, I am bound to express my great surprise at this claim that has been made against the Government of Brazil on a recurrent basis for several years. How can we today accuse a country in which over 17,000 registered workers’ trade unions are active in full freedom? This is a question that needs to be asked. Also, how can we accuse Brazil of not being in compliance with the Convention when it is a country that enshrines trade union pluralism, the right to collective bargaining and social protection, as well as dialogue, in its fundamental law?

I think that Article 4 of the Convention is very clear and that each country has to take measures adapted to its national situation, as well as Article 5 of Convention No. 154, which specifies that measures appropriate to national conditions shall be taken to extend collective bargaining to all matters relating to the determination of working conditions and terms of employment with a view to the regulation of industrial relations.

To resolve these disputes, Brazil has always favoured dialogue, negotiation and rights, and has never taken measures against workers that are contrary to national legislation or the Convention.

I believe that the national legislation in Brazil is in conformity with the Conventions that it has ratified, including Act No. 13467, which reinforces free and voluntary collective bargaining, thereby providing a framework for the industrial relations legislation. Brazil has always been characterized by a policy that gives priority to dialogue and consultation with the economic and social partners, as illustrated by the various laws which provide the framework for industrial relations.

Brazil aspires to develop a State in which the rule of law prevails, and therefore ensures that the law is applied in all fields, including the exercise of trade union rights and collective bargaining. In this respect, it is completely normal, in my view, that trade unions must comply with laws and regulations. Explanations have been provided on many occasions to the Committee by the Government of Brazil, without them ever being taken into consideration. We have the right to raise this type of question when we see the harassment to which Brazil is subject, a harassment that undermines all the progress made in compliance with Conventions.

Worker member, Republic of Korea – I speak on behalf of the Korean Confederation of Trade Unions. First I would like to raise my serious concerns about some of the speeches we heard today on the case of Brazil who is attempting to unduly politicize this Committee rather than based on the analysis of the implementation of the Convention in a technical way. This argumentative manner in this question will bring the Government into discredit.

Law No. 13467 of 2017 amended more than 100 articles of the Brazilian consolidation of labour law. Among the many aspects, I want to address some issues that affect Brazilian workers directly. Before the reform, Brazilian legislation prohibited pregnant women and nursing mothers from working in hazardous or unhealthy places. Amazingly, these guarantees were withdrawn demonstrating complete disrespect on the part of the Brazilian Government for the health of women and their children. Fortunately, we received the news that last week the Federal Supreme Court of Brazil annulled this change thanks to a judicial demand promoted by the unions. We hope that the many other demands that challenge constitutional and conventional points of the labour reform will be equally ruled in favour of workers.

Another very worrying aspect of this dispute is the absence of a broad social tripartite dialogue and we are astonished to learn that the National Commission for the Eradication of Slave Labour, CONATRAE, has been disbanded.

Finally, the way in which the Brazilian State has related to the Conference Committee on the Application of Standards and to the Committee of Experts is to say the minimum, disrespectful. Constructive criticisms that seek to improve the functions of the system are always welcome but that is not what we observed in this particular case. We therefore encourage the Government to resume and re-engage in a broad tripartite social dialogue, taking into account, in particular, the observations of the Committee of Experts.

Government member, Egypt – I would like to thank the Government of Brazil for the important information given to us in the segment they have just made by the Government representative about the measures it has taken in order to implement the Convention. In this respect, there is of course an important need to further improve these mechanisms for that the Brazilian workers can get what they want. The Law issued by Brazil aimed at increasing collective bargaining and not at the regression of collective bargaining as shown by the Government representative in figures. We would like to welcome this Law and we support it. We are fully satisfied, because the results of the surveys undertaken by the World Bank on the law concerned and its positive impact in increasing economic growth and providing opportunities for employment and combating irregular employment. We also support the social dialogue procedure undertaken by the Government in the presence of Worker representatives and Employers before enacting this Law. We would like to encourage the Government to continue this social dialogue in all the fields of labour and to move forward in order to improve the working conditions, so that it will be in conformity with the international Conventions. We hope that this Committee will take into account the important aspects taken by the Government of Brazil and the challenges it is facing.

Employer member, Bolivarian Republic of Venezuela – We reiterate the views of the Employers’ group on the inclusion of the case of Brazil on the shortlist and our concern that the case was included for reasons that are not objective or are of a political nature and, in this respect, we call for the tripartite constituents to review and determine with absolute clarity objective criteria for the establishment of the list of countries whose cases of violations of Conventions are included on the shortlist for discussion by this Committee.

On the substance we consider that the labour reform adopted in Brazil, more specifically in Act No. 13467 of 2017, is not only in compliance with, but also emphasizes and develops the principles set out in the Convention. The earlier 1943 legislation was clearly not adapted to the increasing changes in the world of work. The new legislation establishes modern and flexible criteria that are in full accordance with the current demands of labour and production, and in any case gives priority to collective bargaining practised in a responsible and voluntary manner between the parties to regulate conditions of employment. It also adds value to and strengthens collective bargaining by protecting the agreements concluded by the parties, as a means of complying with the objective and purpose of the Convention, which is to permit adaptations to labour regulation as required by the circumstances of time, activity and place.

The discussion is focused on the powers attributed by the new Act to the parties to agree through bargaining the specific non-application of certain legal provisions. But that in no way implies that the agreement that is concluded, or the objective of the working conditions agreed, is not more favourable to the workers than the minimum standards guaranteed by law. Indeed, these provisions are only applicable in exceptional circumstances in which the high level of income and the intellectual or professional status of the workers are taken into consideration, as well as the power of equitable negotiation by the unions that represent them, which is based on the assumption that the agreement concluded, in full exercise of freedom of negotiation, will be substantially better through the achievement of additional benefits not envisaged by the law.

The agreements concluded through negotiation, or collective agreements, in accordance with the new Act, can in no case affect or reduce the 30 fundamental rights of workers set out in the Federal Constitution. This means that, as with any exceptional rule, it is of very limited application. Moreover, these specific agreements are applicable to a single situation in the respective sector, region or enterprise, for a maximum period of two years. If no specific collective accord is concluded, the labour legislation applies. In this way, the rights of workers are fully protected by the collective contract or, where there is no such contract, the labour legislation.

Adopting a contrary interpretation would involve disregarding the negotiating capacity of workers covered by the legislation, as justified by their level of remuneration and intellectual capacity, and disregarding the bargaining responsibility and power of the unions. We therefore welcome the labour reform in Brazil, which modernizes its situation in the world of work.

Worker member, United States – Canadian workers join our statement. As we confront the challenges and opportunities that have begun to arrive and will accelerate with transformations in the world of work, those who care about growing inequality and polarization in so many countries keenly note the deliberate weakening of institutions that work for social justice. Labour market institutions, social dialogue and collective bargaining are key among them. The employment relations itself is one such institution. In the United States, we have seen a decline in these institutions over decades. Over that time, inequality has steadily increased, social justice decreased, polarization spiked. The drastic, abrupt and reckless changes to Brazil’s Labour Law in dismantling of institutions are broad in scope. I will focus on the creation of the individual autonomous worker and its impact on collective bargaining rights.

In their report, the Committee of Experts have registered concern about the impact of this category on bargaining rights. Noting that the Labour Code makes no accommodation for the rights of these workers, the experts called on the Government in March to inform them of any progress in consultations to address this vast and growing section of the workforce that have no access to bargaining rights. In response last month, the Government frankly stated that the Convention “is not by definition applicable to autonomous workers as collective bargaining is unsuited to the occasional and independent nature of their activities”. The Government further stated that “the competent authorities in Brazil can unveil genuine employment relationships beneath disguised service agreements”. Perhaps they can, but will they? This Government has eliminated the Labour Ministry, reduced worker access to labour justice and unions’ capacity to act in solidarity with unaffiliated workers by creating high costs for workers seeking labour justice and by denying unions’ dues check-off even when they have been negotiated by employers and democratically approved by workers in assemblies.

In response to the Committee of Experts’ question regarding the exclusion of these workers, the Government provides no information. In the best of situations, managing the creation and expansion of this category of workers would require a highly capable labour ministry and empowered social partners. Brazil presently has neither. In spite of updates to surveys by Brazil’s IBGE, even many months after the autonomous worker category was created, no revisions have produced exact information on the size and status of this new part of the workforce.

According to the best proxy, that of the self-employed, in the first quarter of this year Brazil had nearly 24 million such workers, more than a quarter of the total workforce. Less than a third of those register and contribute to social security. Less than 15 per cent of all self-employed are formally registered as such. Aside from the lack of social protection of these workers, the impact of this number of workers without protection on society will be disastrous. Access to collective bargaining provides some protection to these workers but Brazil has done nothing in this regard in its reckless changes to labour law.

Finally, these are not well-paid and highly educated workers well positioned to negotiate for themselves. The average salary of the self-employed in Brazil is US$417 a month, 1.7 times the minimum wage, considerably below the national average minimum. If any class of worker needs access to collective bargaining, it is surely these workers yet the Government has closed the door to them, embracing and legalizing their exclusion rather than acting to combat it. We thank the Committee of Experts for drawing this Committee’s attention to this exclusion.

Government member, Angola – I speak on behalf of the Angolan delegation. We recognize that the Brazilian Government is now undergoing many measures related to the right to organize and collective bargaining. Therefore, we encourage Brazil to continue this practice.

Employer member, Panama – The ILO is the only agency of the United Nations that is tripartite, and it draws its strength from negotiation, consultation and agreement. In the case of Brazil, it is important to emphasize that the labour reform of 2017 is intended to achieve peace through the reduction of poverty, and individual and collective bargaining. The labour reforms in Brazil are not in violation of any ILO Conventions and cannot and must not be analysed in isolation, but within the whole economic, political and social context of the country.

Up to 2017, before the new Act, there was an accumulated total of 2.63 million court actions. In December 2018, less than a year after the implementation of the new Act, that number was reduced to 900,000, or almost 40 per cent fewer. That is social peace!

With regard to the autonomy of the will of the parties, the new Act permits negotiation and mutual agreement as a means of termination of the employment relationship. Accordingly, in the first four months, 73,000 accords were negotiated. This is also labour peace.

In the fight against informality, which attacks both workers and employers, a series of measures have been implemented to create new forms of work which are precisely intended to enable the country to generate new and more jobs. Accordingly, over 97,000 new jobs have been created, thereby reducing poverty.

The new Labour Act in Brazil is not in violation of any agreement or of the Convention, as it promotes individual and collective bargaining and consultation, reduces informality, reduces poverty and promotes social peace, and we believe that it must be analysed in this context. There is therefore no need to request any further reports from the country.

Worker member, Italy – I am speaking on behalf of the Italian trade union confederations and the reason for my intervention is a great concern for the workers of Brazil. It is an intervention that makes reference to the long experience that we have had of collective bargaining in my country, Italy. It is a concern that is justified, especially when it is recalled that the city with the highest number of Italian residents after Rome is not Turin, Milan or Naples, but Sâo Paulo in Brazil.

Over the years, Italy has been a laboratory in guaranteeing balance, but never through the law, as a result of the capacity of the social partners to find the point of economic equilibrium, and always through collective bargaining. All of the reforms that we have made over these years were never to reduce, but to extend collective bargaining to encompass individual forms of work, and always with the participation of the social partners.

We were impressed in years gone by with the data and results obtained by collective bargaining in Brazil. Not only were there income distribution programmes, Bolsa Familia, Fome Zero, but also an increase during those years of 90 per cent, as indicated by all the reports, in collective bargaining, allowing 40 million people to escape poverty.

And now, incontrovertible data indicate that the labour reform, Act No. 873, has led to a reduction in employment and a lack of social protection in the country. This is a political fact that concerns us and which therefore has to be raised in this type of debate.

In 2018, a request was made for information, as well as for the involvement of the social partners. In 2019, the request will have to be that, in light of the results that have been seen, it is necessary to convoke, contact and call for the participation of the social partners so that the Act can be jointly revised.

On the eve of an agreement that may be important between the European Union and MERCOSUR, and we know that Brazil accounts for 80 per cent of the GDP of MERCOSUR, guarantees must be provided of the supervision, and in particular of the role and participation of the social partners, who in Europe are central to the European trade union and social model.

From Italy, from the industrial relations system of my country, from the European system and mechanisms of social dialogue, we issue a call for responsibility to the Government of Brazil.

Government member, Philippines – The Philippines recognizes the significant efforts Brazil has so far made to give full effect to the Convention. It must be noted, however, that reforms and their outcomes cannot be achieved and felt overnight. In their jurisdiction, just like ours in the Philippines, there are legal procedures and processes to be observed and strictly complied with, especially in the field of legislation, consistent with Federal Constitution of Brazil and other national laws.

The Philippines also believes that in view of the complexities of the reforms envisaged, Brazil must be allowed sufficient and reasonable time to institutionalize labour reforms.

Further, institutionalizing labour reforms is not the sole function of government. The Philippines thus expects Brazil to engage its tripartite partners in a meaningful consultation, in the spirit of genuine social dialogue, to address the issues raised and adopt the needed measures appropriate to national conditions. The Philippines trusts that Brazil will remain committed to its obligations under the ILO Convention, and to continue its constructive engagement with its social partners.

The Philippines also shares some of the concerns of Brazil on the working methods of the Committee of Experts, to the extent that tripartism, consensus, and transparency should be fully applied, in view of improving its procedures and building confidence among governments and social partners, as well as to avoid undue politicization of country cases.

Finally, the Philippines requests the ILO, including its supervisory bodies, to continue providing its member States the needed technical assistance and guidance to ensure full compliance with Conventions that no government, worker, or employer will be left behind as we prepare for the future of work.

Employer member, Belgium – The Employers’ group has serious questions concerning this case, which is already coming back to our Committee, after being examined in 2018. The Employers accordingly express their concern at the early examination of Act No. 13467 by the Committee of Experts. We have the impression that the Committee of Experts did not take sufficiently into account, in this case, the information provided by the Government of Brazil and the position of Brazilian employers.

On the substance, the Employers are not in agreement with the Committee of Experts on the fact that the revised versions of sections 611-A and 611-B of the Consolidation of Labour Laws does not adequately promote the widest possible development and utilization of machinery for the voluntary negotiation of collective agreements within the meaning of Article 4 of the Convention. Is it not strange that the Committee of Experts is criticizing Brazilian law for recently introducing the primacy of collective labour agreements and accords in relation to the legislation, while maintaining constitutional social rights.

On the contrary, we observe that collective bargaining is maintained and promoted by the new Brazilian labour law, and that collective agreements are indeed placed above other types of standards, while guaranteeing full respect of the constitutional social rights. That is because Parliament made a distinction between subjects that are negotiable and those that are not.

Brazilian unions are not prevented from collectively bargaining better conditions of work for their members. The scope of voluntary bargaining has even been increased, as not only higher standards may be concluded, but also, for example, stricter standards in exchange for less strict standards in other areas, which is in conformity with the autonomy of collective bargaining.

Finally, the causal link between the reform and the alleged reduction in the number of collective agreements has not been established by the Committee of Experts.

From an international comparative perspective, national legislation is frequently found which allows collective agreements to introduce exceptions and derogations from the law, in accordance with the Constitution and so-called subjects relating to public order.

It therefore appears to us important that the Brazilian Government, in consultation and collaboration with the social partners, is able to continue examining the impact of the reforms and, where appropriate, to decide on any appropriate adjustments, and that in any case the Government is not required to make any amendments to the law on the basis of the Convention.

In conclusion, I wish to recall that social peace and prosperity are necessarily based on social dialogue. Such dialogue must therefore be encouraged by governments. Such dialogue is based on the importance of collective bargaining, on mutual trust and the non-interference of the public authorities in bargaining, which must remain the domain of the social partners.

Worker member, Germany – Brazil has been a Member of the ILO since its foundation in 1919. When in 1948 the Convention was adopted, the Brazilian delegates unanimously voted in favour. Brazil also belongs to the countries that have ratified the most ILO Conventions but this endorsement of international labour standards seems to be a thing of the past. Rather, the increasing erosion of labour and social standards has been on the agenda for some time under the mantra of flexibilization. Reforms whose stated aim was to improve the situation of workers have on the contrary led to the increased precarity of employment and an increase in the unemployment rates. A policy of polarization has steadily widened the gap between workers and employers.

One example is the possibility under article 611-A of the Consolidation of Labour Laws that collective agreements take precedence over legislation and that collective agreements and agreements negotiated at company level take precedence over other collective agreements enforced in this field. The items listed in this provision including, for example, rules on working time, employee representatives at work, access to the employment protection programme or the classification of the degree of unhealthy working conditions are not exhaustive. That is, the content can broadly be extended by the parties with the exception of a number of rights listed in article 611-B. Article 611-A makes it possible to specifically undermine laws and collective agreements that set standards for the protection of workers. To give a recent example, in May 2019, a regional labour court in Sâo Paolo banned the operator of an air taxi company by way of a temporary injunction to urge crew members to sign agreements that include, among others, a clause which discards all the individual or collective instruments that had already been signed. This is the reality in many cases, companies are putting pressure on their employees to make unfavourable arrangements. What bargaining power do you have as an “autonomous” worker if you run the risk of losing your job?

Article 611-A reverses the basic idea of collective bargaining agreements. They are intended to enable the contracting parties to agree on better conditions for employees, however, they should not undermine the existing legal protection level. This is also the opinion of the Committee on Freedom of Association where it notes that the procedures for systematically promoting decentralized negotiation of working conditions which are less favourable than higher-level ones are leading to a global destabilization of collective bargaining mechanisms and to a weakening freedom of association and collective bargaining, which are contrary to the principles of Conventions Nos 87 and 98. We therefore urge the Government, in cooperation with social partners, to amend article 611-A and 611-B in such a way that collective agreements can differ only in favour of workers from laws and other collective agreements.

Government member, Colombia – Colombia expresses its firm commitment to the ILO and its supervisory bodies. The Committee on the Application of Standards is the highest supervisory body of the ILO, and for this reason we trust that improvements will continue to be made in its working methods. That will undoubtedly increase the confidence of everyone and will make it possible to have a supervisory system that is constantly strengthened.

Although document D.1 indicates in section VI the criteria that have to be taken into consideration for the selection of the individual cases of countries called before the Committee, we regret to note that both in the preliminary and the final list a good number of cases do not follow the technical criteria for the establishment of these lists, including the present case.

We appreciate the commitment to the promotion of collective bargaining, based on the principles set out in the Convention. We take due note of the information provided by the Government of Brazil that the central objectives of the labour reform include the promotion of collective bargaining, in accordance with the obligations of the country in the context of the ILO. Our country commends the efforts made by the Government of Brazil to increase collective bargaining and we hope that progress will continue to be made through tripartite social dialogue.

Employer member, Brazil – As you are aware, we have no national federation of employers in Brazil, national association of employers in Brazil, we do have a variety of national confederations which gather employers from different sectors. We have in this room today the national confederations of agriculture, industry, commerce and service, transportation, financial system, health services and insurance, and I am honoured to speak on their behalf.

At the outset, we strongly support the statement by the Secretary of Labour in the sense that this is a case based on weak evidence, flawed data and very fragile information and we think that there is a piece of information that is missing in our discussion of today, and this is, we must find a solution for labour union financing in Brazil. This is the point – before the labour reform, we had the workers that had to contribute to one specific labour union, it was mandatory by law, and on the other hand, we had the labour unions with the monopoly on a certain category, within a specific geographic area, to collect those financial contributions.

So it comes as no surprise that we have today 17,000 labour unions in Brazil. It is by far the largest number in the world, it is about 90 per cent of all unions in the world, which means, and I stress this point, nine out of ten labour unions are located in Brazil. It was a total collection of some US$4 billion.

Then came this labour reform, which again was approved in Congress. It was approved in the lower chamber after ten public hearings, it was approved in the Senate after 22 public hearings, and it was challenged in the Supreme Court with no success, this reform, and now workers do not contribute on a mandatory basis any longer, they do not “must” contribute, they “may” contribute to labour unions, and therefore, the revenue drops some 90 per cent. We have a number of labour unions closing down in Brazil.

We must find a solution, but the solution does not lie on presenting a case based on flawed data, weak information and fragile arguments. The solution lies in adapting to a new vibrant economy by convincing workers that the labour unions are effective and the representative.

As the conclusion, we urge this Committee to acknowledge in its conclusion that there has been no violation whatsoever of the Convention.

Worker member, Portugal – We are speaking on behalf of the Confederation of Trade Unions of Portuguese-speaking Countries, which includes the trade union confederations of Angola, Brazil, Cabo Verde, Galicia, Guinea-Bissau, Mozambique, Portugal, Sao Tome and Principe and Timor-Leste.

We are following with great concern all of the measures adopted in Brazil in relation to the labour reform of 2017, including: the generalized possibility to derogate from legal standards which must afford a minimum of protection to workers; the primacy given to enterprise level bargaining to the detriment of sectoral bargaining; the possibility to impose less favourable conditions than those obtained through collective bargaining in individual contracts of employment for workers who barely earn above a certain level, and to remove certain groups of workers from the protection afforded by collective bargaining (such as autonomous workers). All of this is the result of an ideological vision that is taking us close to what the troika attempted to apply in Portugal during the period of financial crisis.

These are rules that are intended to undermine, weaken and even extinguish the right to collective bargaining and the role of trade unions, always under the pretext of increasing legal security and contributing to social progress, and which have the unique real effect of challenging the fundamental principles, values and rights defended by the ILO, reducing the value of work and subjecting it to the so-called economic freedoms.

In Portugal, similar measures contributed nothing to the growth of the country, although they succeeded in reducing labour rights, increasing poverty, reducing the annual coverage of collective bargaining in only a few years and requiring investment in post-crisis measures.

The portrait of Brazil is very similar to this in view of the introduction of the measures indicated above. It is therefore fundamental to establish a legal framework that guarantees the full independence and right of unions to participate, accompanied by a threshold of legal protection for fundamental rights, based on the principles of collective bargaining and a system of industrial relations that safeguards the fundamental role of collective bargaining for all workers. This is the only way of establishing the fundamental basis for economic growth and real, sustained and equitable social progress.

Worker member, Spain – We are here to supervise the standards system. The Brazilian labour reform and Act No. 873 which establish that collective bargaining may worsen the legal regulation of fundamental labour conditions to guarantee decent work in Brazil, are not under examination here for political reasons, but because they are in clear violation of the Convention.

The legislation under examination here permits a reduction in the level of regulation set out in the national legislation, including in the international Conventions ratified by Brazil, in relation to working time, rest periods and the remuneration system, among other areas. They also establish the primacy of enterprise agreements over sectoral collective agreements, and their capacity to modify legal regulations respecting working conditions for others with lower levels of guarantees, de facto excluding trade unions from bargaining.

With the labour reform and Act No. 873, the Government of Brazil has brewed up and guaranteed the perfect storm against the nature of collective bargaining, the collective rights of women and men workers and the regulation of certain conditions of decent work, in violation of the Convention in law and practice. The power that is attributed to collective bargaining to deviate from legal provisions establishing the minimum levels for industrial relations explodes the nature of bargaining and its specific function as an instrument for improving working conditions and the quality of life, and renders labour legislation so flexible that it removes protection from the working class and trade unions to the extent that they are left the victims of whoever wields power in industrial relations.

The Government of Brazil has the responsibility to guarantee social peace and justice, by improving the standards of living of men and women citizens and guaranteeing that trade union rights and collective bargaining serve their purpose and can be exercised normally.

And yet, despite that, the action of the Government is intended to:

- mount a frontal attack against the right of workers to have decent conditions of work;

- endanger the application of the international standards which regulate minimum conditions of work;

- infringe the collective rights of women and men workers;

- slow down the negotiation of collective agreements, the number of which has fallen significantly since the entry into force of the legislative reform in November 2017;

- promote the individualization of labour relations; and

- jeopardize the survival of trade unions.

For all these reasons, and for the serious failure to comply with the ILO Convention that they imply, we consider that the Government of Brazil deserves a firm and strong response from this Committee.

Employer member, Chile – For the second successive year the Committee is having to examine the case of Brazil. And it is important to recall that last year the Employers challenged its inclusion on the shortlist, the reasons why the Committee of Experts examined the case outside the regular reporting cycle and why the examination focused on Act No. 13467, in a situation in which it had been in force for a very short time, making it difficult to be able to assess its impact.

The conclusions adopted last year by the Committee on the Application of Standards only recommended that the Government provide information on the application of the new Act and on the consultations held with the social partners.

And once again this year, the case of Brazil will be examined by this Committee in circumstances in which, although there are new observations by the Committee of Experts, it is sincerely difficult to understand the objective criteria for the selection of the case. And this is very important as the credibility and effectiveness of the work carried out by the Committee on the Application of Standards must have a transparent basis.

We are aware that there are geographical criteria for the distribution of the number of cases by country, and that priority is also given to cases with a double footnote, which is intended to give priority to cases related to the fundamental Conventions of the ILO, and that there are a limited number of cases that can be vetoed by the groups.

Nevertheless, it is of concern to us that the political pressure exercised by any of the constituent groups of the ILO should prevail over the objective criteria of compliance with standards that must guide the work of all the ILO supervisory bodies, including this Committee on the Application of Standards.

With reference to sections 611-A and 611-B of Act No. 13467, it is important to be clear. These are provisions which can in no event affect the fundamental rights of workers set out in the Federal Constitution of Brazil and they relate to “possible voluntary agreements between unions and employers”, which do not involve unilateral imposition and moreover cover a limited period of a maximum of two years.

We therefore consider that the intention behind these provisions is to encourage and promote voluntary collective bargaining, with emphasis on its importance as an instrument for the voluntary use of the parties so as to be able to adapt part of the legal regulations to their specific needs.

Believing that the provisions in question could be imposed unilaterally by employers on unions is to disregard the capacity of the latter to act as spokespersons for the workers whom they represent.

Worker member, Colombia– On behalf of the workers of Colombia, we once again address this Committee to challenge the Government of Brazil as the implementation of its labour Act of 2017 is in violation of the principles of this fundamental ILO Convention. It should first be said that the observations, requests and recommendations of the supervisory bodies, the Committee on Freedom of Association, the Committee of Experts and the Committee on the Application of Standards, breathe life into and realize international labour standards, that their work is fundamental for the Organization and that their views, especially in relation to freedom of association, are the very application of Conventions Nos 87 and 98 or, as we say in my country, you could not fit a sheet of paper between the supervisory bodies and the Conventions.

Yesterday, in this very forum, the Employers made certain reproaches against the Government of Uruguay, which today we consider must seriously be levelled against the Government of Brazil:

(1) the Government of Brazil did not consult, did not ask the representatives of workers and did not inform the Brazilian trade union confederations about the labour reform that it was about to adopt, it simply imposed it;

(2) the Government of Brazil has completely ignored the recommendations made by the Committee of Experts in its reports in 2017, 2018 and again in 2019, in which it indicated that “a legal provision providing for a general possibility to derogate from labour legislation by means of collective bargaining would be contrary to the purpose of promoting free and voluntary collective bargaining”, noted the situation with concern and requested the Government to take measures to bring the Act into conformity with the Convention; and

(3) the Government of Brazil must be criticized with real vehemence for limiting to two years the maximum duration of a collective agreement or accord when the supervisory bodies have indicated that this would be contrary to Article 4 of the Convention.

Finally, we wish to recall that the spirit of the Collective Bargaining Convention, 1981 (No. 154), and the interpretation of the Convention by the supervisory bodies, is that individual agreements in contracts of employment should not be to the detriment of collective bargaining with trade unions and that they must not in turn be able to minimize the guarantees set out in the law. The labour reform in Brazil has precisely the opposite purpose and the Government therefore continues to be in violation of collective bargaining.

Employer member, Mexico – I must begin by recalling that Brazil is one of the countries with the highest rate of ratification of ILO Conventions and that, adopting the same approach, the labour rights that were generated over time were given constitutional rank in 1988, including recognition of collective labour instruments.

It is evident that the so-called labour reform in Brazil has not derogated from or modified the fundamental labour rights set out in the Constitution. The Act only establishes that workers and employers may, if they so wish, in common agreement and voluntarily, establish standards relating to forms of work, in specific circumstances and for a specified period of time, without this being able to affect compliance with fundamental rights, which is in no way a violation of the Convention.

It is important to reiterate and clarify that when there is no agreement between workers and the employer through collective bargaining, the law prevails. It is clear that the labour reform is in accordance with the provisions of the texts established by ILO standards, and in particular this Convention.

One of the fundamental objectives of collective bargaining in the labour reform is so that, through that means, choices can be made relating to the activities and real needs of the work centre, which cannot necessarily be envisaged by the law. All of this is the result of dialogue, mutual concessions and contractual agreements which, contrary to the perception given by the report, affect opportunities to improve conditions of work.

Proof of this is that workers have not been affected by the reform, according to the information available. The concerns have been resolved through legal channels in Brazil, including prior to and instead of raising the general issue with this Organization.

Another telling element is that no workers’ union in Brazil has pointed to any violation of the Constitution, the Convention or any other ILO standard, in relation to the matters under examination. The fact that all of this is clear means that no issues arise. Looking towards the future, and the specific circumstances that will arise in each work centre, we have to recognize that the law is necessary to generate a framework of minimums and maximums.

Nevertheless, allowing regulation through collective bargaining, as the labour reform in Brazil does, it is also indispensable to identify the specific needs and adapt labour conditions to the requirements of the specific activity, for the benefit of the parties, competitiveness, employment and sustainable development.

Observer, Latin American Association of Labour Lawyers – In addition to being Vice-President of the Latin American Association of Labour Lawyers, I also represent the Brazilian Association of Labour Lawyers. I have data that gives clarity to aspects that must be taken into account by this Committee in relation to the technical, not political, dimension of the case.

Since the labour reform in Brazil, a broad range of measures have been implemented which are directly related to the Convention, all examined by the courts in the system of three levels of courts, in addition to the Constitutional Court, in relation to which a long period has passed awaiting a solution. Only in relation to bargaining there are already tens of thousands of court actions, according to the statistical data of the Higher Council of Labour Justice in Brazil.

Coverage of workers by collective agreements has been significantly reduced. According to the Brazilian Association of Labour Court Judges, there has been a reduction of 43 per cent in the number of agreements concluded. However, the impact of the substitution of collective bargaining by individual contracts is broader and more dangerous, as well as a frightening number of artificial transfers of members of the working class to the status of supposed entrepreneurs, concealing conditions of strict dependence and subordination.

In March 2016, the national household sample survey carried out by the Brazilian Institute of Geography and Statistics, an official government body, pointed to the existence of 9.5 million unregistered workers, who are therefore without collective bargaining coverage. By April 2019, this number had risen to over 11,200,000, or in other words, in three years, over 1,600,000 workers had lost protection directly.

We have around 8 million micro-entrepreneurs, following an increase of 25 per cent in two years, almost all employers of their own labour, a figure that raises the question of how the Brazilian working class went to sleep employed and woke up an employer.

Some of the Governments that are present may think that the reform adopted in Brazil has certain similarities with the changes made in their countries. But in no case has there been the paradox of attempting to extend the powers of negotiation, specifically with a view to reducing rights, while at the same time removing all the means and weapons of bargaining under conditions of parity.

It is necessary to invoke article 19, paragraph 8, of the Constitution of the ILO, because Brazil has removed protection from an enormous mass of workers through regressive and anti-union rules, thereby violating the spirit of the Convention, which must be preserved.

Employer member, Paraguay – I want to have the opinion of my delegation recorded with reference to the case of Brazil, which is being discussed here for the second time, which is unjust, despite what has been said by the opponents of the labour reform in Brazil.

The ILO is tripartite in its nature, which requires the fundamental discourse of industrial relations to be totally technical.

It is important to take into account that fact that the labour reform is a national agenda, it is a focused effort, the result of at least 20 years of debate intended to improve labour relations in Brazil, founded on the basic premise of the incentive and value accorded to collective bargaining.

This takes on special importance in the specific case of the labour reform, when it is seen that the basic premise of the reform is precisely to incentivize, protect and add value to free and spontaneous collective bargaining, in the form advocated by this Convention and Convention No. 154, both ratified by Brazil.

The Federal Constitution of Brazil has been established since 1988, among the rights of workers, the recognition of collective labour agreements and accords, and the Supreme Court of Brazil has also taken the position of preserving collective bargaining.

All of these matters were elements of the labour reform, which places emphasis on rules respecting what can be adopted through collective bargaining, including conditions of work, such as: remuneration based on productivity, telework, changes in rest days, among others, without overlooking those that cannot be subject to negotiation, such as the rights of workers set out in the Constitution, including: maternity and paternity benefit, annual leave and occupational accident insurance.

For all these reasons, it can be said that there is no doubt that the labour reform in Brazil is in full compliance with the Convention.

Government member, Argentina – The Government of Argentina thanks the Government representatives, as well as the social partners, who have taken the floor on this item of the agenda. In line with the statement by GRULAC, we wish to indicate our concern with regard to the criteria adopted for the establishment of the list of countries. We observe the persistence of a serious geographical imbalance in the list, which particularly affects our region.

We therefore propose the application of more objective criteria and more transparent methods that draw attention to cases of serious failure to comply with international labour standards, which allow improvements to be proposed addressing as a priority the claims of the social partners whose fundamental rights are most seriously jeopardized.

We listened carefully to the intervention by Brazil on its labour reform. Brazil is one of the countries that has ratified the most international labour Conventions and constantly strives to achieve the necessary harmonization between the texts of international standards and its national legislation. The labour reform in Brazil is a gradual building process that is parliamentary in its nature, in respect of the constitutional guarantees. It is a genuine expression of the challenges that we are currently facing, which require the adaptation of rules to the economic realities imposed upon us by globalization.

Today the social contract is not the same as 40 years ago, and changes are required in accordance with a different world governed by the advances and dynamic of international competition. The need for equitable employment is conditioned by new circumstances and we need to adapt to them while preserving the values of social justice.

It must not be forgotten that the explanations provided by Brazil concerning Convention No. 87 relate to legislation adopted by Parliament following in-depth debate, and that it was applied gradually within the framework of the new labour relations.

It is incomprehensible that Brazil has been included in the list of countries in 2018 and 2019. The pretext of regional balance appears to be a global injustice. Those who founded this Organization looked for decent work and social justice, they did not see children working – they foresaw development, growth and progress. One hundred years later, while Brazil is on the dreaded shortlist, there are many places in the world where workers do not even know of the existence of this Organization. And this means that regional balance must be maintained.

The situation in Brazil, as in many other countries in the world, is not paradise. There is no doubt that the world is plagued by shortlists that are much more serious than those enumerated on ours.

Those of us who are here love this Organization and, for this reason, we want to ensure that in the future the ILO is not in the museum of acronyms. And to prevent that, we must calibrate our strengths and capacities with a critical sense and without complacency. And all of this because we would like in future to be able to think nostalgically about our past, which is now our present.

If we did not put all of this into words, if we remained silent, we would all be assisting in an international complicity of silence.

Employer member, Spain – For the second consecutive time, we are discussing this case, on the same grounds as last year, without any technical basis for the inclusion of this case in the list of cases to be examined by this Committee. We, the members of the Committee, must ensure that only cases of clear infringements of Conventions are included on the list, based on objective methods and criteria. We wish to recall that this case was discussed last year by the same Committee and that in its conclusions it determined that there were no elements indicating failure to comply with the Convention.

On the substance, we are convinced that the collective bargaining promoted by the new labour reform is not in violation in any way of ILO Conventions, and particularly this Convention.

We consider that, with the new Act, collective bargaining is taking on greater relevance by enabling the representatives of enterprises and workers to negotiate better conditions than those set out in law. This is the meaning, and only this, that must be conferred on the primacy of collective bargaining in relation to the law, as set out in the new legislation.

All of this applies without undermining in any way the labour rights guaranteed by the Constitution.

At the same time, we must recall that Article 4 of the Convention must serve as an argument for promoting voluntary negotiation. In this respect, the Brazilian legislation has merely reinforced the principle of collective bargaining.

However, in addition to what has already been said, we wish to emphasize that the reform has already begun to produce its first positive results, among which we must refer to the following:

- the reduction by 40 per cent of the labour disputes going to court;

- the modernization of labour legislation;

- the incentives to promote dialogue and avoid legal disputes, which resulted in 82,000 mediation awards in 2018; and

- greater facilities for the recruitment of workers.

Special attention should be drawn to the important debate held by the social representatives during the adoption of this legislative proposal, and the consultation with civil society by the Congress, in strict compliance with the legislation in force.

In light of the above, the Committee is bound to conclude that Act No. 13467 is in compliance with ILO Conventions.

Government member, Panama – The Government delegation of Panama welcomes the explanations provided by the distinguished delegate of Brazil on the labour reform implemented to promote collective bargaining, which seeks to comply with the obligations of the country in relation to the ILO.

We wish to indicate once again that this case is a clear example of what our regional group, GRULAC, has emphasized, as its selection does not reflect adequate geographical proportionality.

With reference to the comments of the Committee of Experts on the application of the Convention in Brazil, we regret that it was decided not to wait for the regular reporting cycle for the Government of Brazil on the application of the Convention, which was planned for this year. The Committee is therefore without appropriate and suitable information on the scope of the implementation of the legislative action by the Brazilian authorities, which is being examined by the judicial authorities in the country.

This Committee and the ILO as a whole should recognize the important efforts that are made by Governments and national institutions and organizations in the interpretation of standards with a view to taking into account national circumstances, capacities and the legal system.

We encourage the Government of Brazil and the social partners to maintain this firm commitment to the promotion of collective bargaining and to determine through tripartite social dialogue the necessary measures to maintain compliance with the principles set out in the Convention.

Employer member, Guatemala – This is the second time that this case has been discussed by the Committee, as recalled by previous speakers. Without judging the reasons for its inclusion on the list, what is certain is that it gives us the opportunity to examine in a little more detail the legislation adopted recently in Brazil, which is based on the principle of strengthening collective bargaining within the terms required by Article 4 of the Convention.

And this, based on the rights of workers set out in the Constitution, is the floor for negotiation, which offers a broad guarantee of protection in a country that implements in detail the labour rights enshrined at the constitutional level.

It appears to me to be very illustrative that we are discussing this case on the occasion of the ILO’s Centenary, and that this Centenary coincides with the change of era constituted by the fourth revolution. It is therefore a good occasion to analyse how standards have to be adapted to the current needs of the labour market. The scope of standards has to be understood as a function of this vision of the future.

It appears to me that in the reform implemented in Brazil there are good examples of how to achieve adaptation, without however abandoning fundamental labour guarantees. As one example, I refer to the content of section 444 of the Code respecting the articulation between collective bargaining and individual contracts of employment, which allows greater scope for action by the parties negotiating their conditions in a specific contract under certain conditions.

A sound understanding of this rule is based on comprehending the double guarantee for workers which, on the one hand, relates to those with certain qualifications and, on the other, guarantees a series of rights set out in the Constitution. It also offers an opportunity to adapt, in this context of so much change, the specialized services provided by the worker to the needs of the enterprise, which are also changing, and its environment.

This makes the need for legal certainty concerning the rights of workers compatible with the need to adapt to new forms of work, and particularly the stability of the worker, whose job could disappear in the absence of a rule allowing such adaptation.

We support the statement by the spokesperson of our group, in the sense that this provision is not related to the content of Article 4 of the Convention, and is not therefore in violation of it.

Government member, Chile – Our delegation endorses what was said by Argentina on behalf of a significant majority of the States of the group of Latin American and Caribbean countries (GRULAC). Moreover, as indicated by various countries from our region who preceded us, we share the concern regarding the application of the criteria for the selection of cases to be examined by the Committee and we therefore call for the process to be more transparent with the participation of all the constituents on a tripartite basis.

We share the concern that there has not been adequate recognition of the efforts made by the Government of Brazil. Moreover, if the country had been allowed sufficient time to be able to share relevant information with this Committee, the case might not be under examination by this body. We are also in solidarity with the other countries in our region which, despite the efforts made in accordance with their national situation, have also been included in the shortlist.

We encourage the Committee to ensure that the measures to be proposed are constructive and incorporate social dialogue as a central element so that progress can be made on the various challenges that arise out of the future of work.

Employer member, Honduras – There is no basis whatsoever to justify Brazil being called before the Committee, as the labour reform introduced though Act No. 13467 of 2017 is not in violation of any international labour standards or the labour rights guaranteed by the Constitution of Brazil. On the contrary, it reinforces the objective of the legal tool of collective bargaining, by ensuring that collective instruments can be concluded taking into account current working and production arrangements, without the interference of the State.

The new Act reinforces the principles of the rule of law by giving guarantees of legal security to the social partners which make use of collective bargaining as a tool to preserve the autonomy of the parties, giving priority to what is negotiated over the law.

It appears to be necessary to reiterate with great force what has already been said in this room: Article 4 of the Convention does not establish any absolute requirement that the outcome of collective bargaining must be conditions that are more favourable than those set out in law. In practice, the Convention provides that countries shall take measures to adapt collective bargaining to national conditions, which is precisely what Brazil has done.

What is of concern is that the Committee of Experts can consider collective bargaining to be valid only if it results in more favourable terms and conditions of employment than those set out in law, as this is a change in the rules of the game established by the Convention and an action that is in violation of the very principles of the ILO.

There is therefore no reason for the Committee to be examining the case of Brazil once again.

Worker member, Uruguay – I first wish to express the deepest solidarity of the trade union movement in Uruguay, our Inter-Union Assembly of Workers – Workers’ National Convention (PIT-CNT), with the women and men workers of Brazil. Workers are not guided by any short-term political considerations, as peoples, with their true knowledge and understanding, orient governments on the basis of their various political trajectories. What does guide workers is not only the technical requirement to comply with international conventions, but also the political necessity, although not party political, to advance the rights of workers and peoples in compliance with the law that is in force.

From our viewpoint, the Convention is an integrated whole, otherwise it would not be possible to explain how it simultaneously in Article 1 establishes freedom of association and in Article 4 it establishes the right to collective bargaining. They are two sides of the same coin.

Collective bargaining in this society is not bargaining between equals, and although it sounds romantic to say that work is not a commodity, we would not be able to explain the functioning of society if we do not take into account the manner in which the labour market operates. Strictly dispossessed of the means of production, we workers are obliged to sell our capacity to work, the force of our work, in exchange for a wage, and we sell it to whoever possesses the economic power and the capital means of production to contract us. The labour market happens every day.

Factors outside collective bargaining have a daily influence on the wage conditions and hours that workers must work. For example, the phenomenon of unemployment: if unemployment is higher, we workers have to bargain lower.

We are radically opposed to this labour reform because it effectively adds an element of competitivity to the bottom, it includes elements of blackmail against the weakest party to the labour relationship. By introducing the concept that collective agreements can be below the level of the law, it adds an element of even greater blackmail by permitting the individualization of settlements by individual works below the level of the collective agreement.

A union is a free and voluntary union of workers for the defence of their interests. The union is dissolved through the individualization of collective bargaining and the submission of workers to significant processes of deregulation.

From our perspective, it is therefore correct for this Committee to analyse and go further into the manner in which Brazil is complying with ILO standards so as to ensure that so-called social peace is not the peace of the entombed.

Government member, Romania – I am speaking on behalf of the European Union and its 28 Member States. The EFTA country Norway, Member of the European Economic Area, aligns itself with this statement. We do not wish to comment on the case we are now discussing. Yet, we feel compelled to raise points of fundamental nature in relation to some comments made since the beginning of this Committee on the supervisory system itself. We would like to recall that international labour standards provide the legal framework for the Decent Work Agenda. These international labour standards are backed by a supervisory system and by the ILO’s technical cooperation on the ground, which supports application in law and practice. The European Union and its Member States support the ILO’s standards and the supervisory mechanisms and will stand firm against any attempt to weaken or undermine the system. Adopting international norms without having a robust and independent supervisory system to oversee their implementation would not only be inefficient, but worrying. Indeed, we should not doubt that the supervisory system is critical to ensure credibility of the Organization’s work as a whole. Therefore, we call on all constituents to maintain a constructive stand and abide by the rules of these mechanisms.

Government representative – Brazil aligns itself with the statement made by Argentina on behalf of GRULAC and we thank all Governments and social partners who have joined us in our call for comprehensive reform of the supervisory system, both at this Committee, and elsewhere during this Conference. We have presented concrete facts and evidence that Brazil is in full compliance with Convention No. 98, as well as other ILO Conventions. Moreover, we have indicated that the Committee of Experts acted on flawed information retrieved by the accusers from dubious, partial studies in newspaper articles. This is in direct conflict with modern public policy analysis and international comparative law studies. Our delegation will forward FIPE studies on collective bargaining and the mentioned studies by the World Bank, OECD and IMF. I pay my greatest respect for the Workers that have taken the floor, and especially to the Worker spokesperson, Mr Mark Leemans, and Mr Lisboa, representative of the Brazilian workers. I must stress, though, that we should focus on the issues at stake in the present session. The labour reform is an important tool to reduce informality, provide legal certainty, and encourage investment. The labour reform did not, however, touch in labour rights in thus in the cost of labour in Brazil. And as we say in Portuguese, “jobs are not created by decree”. Job creation is the factor of the overall economy, which is already weak after the deepest economic recession in our history. Having said that, since the labour reform in Brazil, more than 850,000 jobs in the formal sector have been created. According to official statistics, there were 38.7 million workers in the formal sector in April 2019, versus 37.9 million two years before. In comparison, in the two years before the modernization of the labour legislation, more than 1.6 million formal jobs were lost. The statistics from the National Households Sample Survey (PNAD) confirms 3 million workers more in the first quarter of 2019 when compared to the same period of 2017. Moreover, it does not present any loss in terms of workers’ real wage. Accusations of precarization of the labour market are unfounded and not supported by evidence. New forms of contracts respond to a negligible number of contracts. For instance, the intermittent work responds for 0.16 per cent of the overall formal contracts. On the same token, official data show that the share of temporary contracts is less than 1 per cent of the overall formal contracts. There is still a lot to be done, and the economy is still very weak, but we are on the right path. With regards to the relationship between labour law and collective agreement, article 611-A of Act No. 13467, the Committee of Experts states that the hypothetical possibility by means of collective bargaining of derogations which could reduce rights and protection afforded by the labour legislation to workers, would discourage collective bargaining and would therefore be contrary to the objectives of the Convention. This statement is only a presumption lacking evidence support. No confirmation of derogation or harmful collective agreement has been presented in the last three years since the Committee started accusing Brazil. A mild reduction in the number of collective agreements is linked to the overall weak state of the Brazilian economy and has been matched by more multifaceted negotiations to the benefit of employees and employers alike. These findings are supported by solid evidence from recent studies from independent research institutions and international organizations, once again, like the World Bank. The labour reform is the result of years of discussion in the Brazilian society, followed by prior consultation with the central unions and hundreds of interactions within the Brazilian Parliament, the same institutions that ratified all International Labour Organization (ILO) Conventions.

On the prevalence of collective accords over general conditions of collective agreements, the purpose of article 620, is to allow for collective accords, which are much closer to the day to day of the workers, at the company level. Thus, this actual reality can be better translated by means of the collective accord, giving more density to the negotiated clauses.

On the relationship between individual contracts and collective agreements, Article 444, it should be recalled that Article 4 of the Convention does not refer to individual contracts of employment. Additionally, the possibilities established in article 444, (not 442, as wrongly reported in a previous report) of the amended labour legislation, is only applicable to a small portion of the Brazilian population, that is 0.25 per cent of the population of the very top layer of income with a higher level degree, who are generally employed in positions of executive management.

With regard to Provisional Measure No. 873, the provision is actually very simple, it reaffirms the union contributions depend on prior written and individual authorization of the employee or company, so that the employee alone has the choice of financing the union. I would like to recall that prior to the labour reform, union contributions were obligatory, so much so, that in Portuguese, it is called a union tax, not a union contribution.

Since the new law entered into force, some unions circumvented the law imposing obligatory contributions by means of general assemblies and doubtful representation, which approved collective authorization. Employees were harmed in their freedom of association rights, so that the provisional measure was necessary to enforce the labour reform and secure Parliament’s will.

In conclusion, there is no reason whatsoever to assume, as suggested by the Committee of Experts, that the new labour legislation in Brazil would discourage collective bargaining. Workers retain ability, an option in a voluntary negotiation to preferred legal provisions whenever they are deemed more favourable than the terms proposed by the other party.

The examination of the Brazilian case was in breach of the most basic principles of due process. A system allowing for this to happen, with no effective checks and balances, fails the purposes and objectives of the ILO.

Brazil rejects any attacks on its institutions – over the past two years Brazil has faced political crisis and an economic recession. We have implemented important economic and labour reforms enacted by legislation and promoted positive change. Democracy is alive, civil society is vibrant, political debate is in full force, the rule of law is in place and strong, and the judiciary remains fully independent. Brazil will keep investing in economic reforms to create more quality jobs, revamping our labour intermediation mechanisms to lift people out of unemployment as early as possible. Digital services are being offered to companies and workers alike, reducing bureaucracy and making way to the creation of jobs.

As a mid-income and ageing country, we all know that wage increases and social justice will only accrue from productivity gains. We invite the workers and the Worker representatives to contribute in that agenda, fighting informality, lifting more people from poverty, and building the future of work in Brazil.

Worker members – We can only observe with deep concern the disastrous impact of the amendments introduced by Act No. 13467 in 2017 and the failure of the Government of Brazil to uphold the fundamental principles of free and voluntary collective bargaining and of the binding nature of collective agreements concluded, which are enshrined in the Convention.

Under the amended provisions of the Consolidation of Labour Laws, the hierarchy of norms has been reversed and in less than two years, industrial relations in Brazil have been totally dismantled. With these regressive changes, the Consolidation of Labour Laws no longer serves its purpose of a safety net for Brazilian workers and the number of collective bargaining agreements is dwindling. Workers have been stripped of all protections afforded by the law or by more favourable collective agreements and, contrary to the Government’s argumentation, they are left worse off.

After years of social progress and inclusive laws and policies that have lifted millions of people out of poverty, Brazilians are slipping back into poverty and unemployment, while inequalities are growing. In a country where unemployment rates are increasing dramatically and where more than 50 million persons, almost 25 per cent of the total population, live with less than US$5.50, we deplore the total disregard of the Government of Brazil for its people.

The Government insists on fostering a system which violates the principles, objectives and provisions of the Convention and which gravely undermines the foundations of collective bargaining and industrial relations in Brazil. We strongly urge the Government of Brazil to stay true to its commitment as a member State of the ILO, therefore bound by its Constitution, and its obligations under the Convention.

We call for genuine and meaningful consultations with the social partners and without further delay and a complete revision of the Consolidation of Labour Laws in order to bring its provisions into full conformity with the Convention. We cannot stress enough the importance of restoring tripartite social dialogue and consultations in Brazil and call on the Government to take immediate and concrete steps to this end.

Furthermore, we call on the Government to address without delay the shortcomings and legislative gaps highlighted by the Committee of Experts which concern the following points:

- adequate protection against anti-union discrimination;

- compulsory arbitration in the context of the requirement to promote free and voluntary collective bargaining;

- the right to collective bargaining in the public sector; and

- the subjection of collective agreements to financial and economic policy.

This case requires serious consideration by this Committee and by the ILO as a whole. We fear that the regressive labour reforms in Brazil might be taken as a model by other governments of the world, and as this case shows us, this would be catastrophic.

Finally, we heard a number of speakers from both the Employer and Government benches raising the following issues: the interpretation of Article 4 of the Convention by the Committee of Experts; the independence and impartiality of the Committee of Experts; and the selection of individual cases for the examination by this Committee. We disagree with the expressed statements. We consider that it is not appropriate to address these questions in the discussion of an individual case. The discussion of an individual case has the purpose of examining substantive issues related to the application of ILO Conventions and not to pass judgement or suggest changes to the ILO supervisory system and its work. There are well-determined procedures to do so if needed. Comments that address issues that do not concern the substance of the case are irrelevant and are purely deflecting from the serious issues before us. Therefore we will respond to the expressed statements at a more appropriate time. Meanwhile we thank the European Union for its constructive comments supportive of the ILO supervisory system. Given the seriousness of the issues, we call on the Committee to include Brazil in a special paragraph.

Employer members – We have listened carefully to each of the interventions in this case. We particularly welcome the presence of the Deputy Minister, the Ambassador of Brazil and their teams in the room, as well as the full, clear and detailed information that has been shared with the Committee.

Before examining the matters raised by the Committee of Experts, I wish to react to what was said by the spokesperson of the Workers. In our understanding, it is indeed the mandate of this Committee and it is within the scope of this Committee to refer to the report of the Committee of Experts and its observations. If that were not the case, what would be the purpose of the public debate that is held in this Organization and this room. We therefore wish to make it clear that for us this is the place and we continue to state that we reject the views set out in its report on the aspects that we have already noted.

Having examined the issues raised by the Committee of Experts, and our rejection of them, and taking into account the intervention of the Government and the subsequent discussion, in the view of the Employers’ group it is clear that: first, the modifications made to sections 611-A and 611-B significantly extend the possibility of, and therefore encourage and promote the utilization of collective bargaining; second, in the view of the Employers, the changes made to section 444 broaden the possibility of the individual negotiation of contracts of employment by workers with higher education and incomes, without limiting their protection under the law; and, third, in the opinion of the Employers, the changes made to section 620 also broaden the scope of collective labour accords and are therefore in compliance with Article 4 of the Convention, as they also promote collective bargaining at the level of one or more enterprises, without restricting collective bargaining at higher levels.

Finally, it is clear that the labour reform, in the view of the Employers, was the result of a broad and exhaustive process of social dialogue.

We wish to recall that social dialogue, which must be in good faith, fruitful, productive and above the bodies that engage in it, but it cannot always result in consensus in the exchange of ideas, as on the contrary that would signify a veto on its outcome. It is therefore the responsibility of governments, in the final analysis, to legislate and to assume their responsibilities as governors issuing legislation in accordance with international labour Conventions, as has been done in the present case in our view.

For all of these reasons, this Committee can conclude once again, as it did in 2018, that the labour legislation in Brazil, and particularly Act No. 13467, is in compliance with the provisions of the Convention ratified by Brazil on 18 November 1952.

In that light, the Employers’ group rejects the inclusion of this case in a special paragraph.

We therefore encourage the Government of Brazil to draw up in consultation with the most representative employers’ and workers’ organizations and to submit a report to the Committee of Experts in accordance with the corresponding regular reporting cycle.

Conclusions of the Committee

The Committee took note of the information provided by the Government representative and the discussion that followed.

Taking into account the discussion that followed, the Committee requests the Government to:

- continue to examine, in cooperation and consultation with the most representative employers’ and workers’ organizations, the impact of the reforms and to decide if appropriate adaptations are needed;

- prepare, in consultation with the most representative employers’ and workers’ organizations, a report to be submitted to the Committee of Experts in accordance with the regular reporting cycle.

Government representative – Thank you for giving Brazil the floor to speak, after the conclusions pertaining to Brazil have been adopted. Once again, in concrete terms, we have witnessed how urgently and thoroughly the supervisory system needs to be reformed. Under the very roof of this tripartite Organization, two parties of the so-called International Labour Organization tripartism, just made public their conclusions on the debate we had last Saturday, without the participation of the third party concerned. No other system, supervisory or otherwise, of the UN family of international organizations is so out of touch with the reality of this one. Due process of law has yet to be observed.

Throughout all chapters of this supervisory system, only two of the three parties take the decisions. In the house of tripartism, only two parties list, expose and conclude. Brazil aligns itself with all Governments and social partners who have joined us in our call for a comprehensive reform of the supervisory system, both at the Committee on the Application of Standards and elsewhere during this Conference.

This supervisory system is not democratic, transparent, impartial or inclusive. It has all the ingredients of a robust system; what it does lack is due process of law and right of defence. This system is too important to be left unguarded against political buy-ins and lack of transparency. We have confidence that the ILO constituency can seek consensus towards building an effective, truly tripartite, and universal mechanism for standards supervision.

We have presented concrete facts and evidence that Brazil was in full compliance with Convention No. 98. Based on economic research institutions, like the University of São Paolo and international organizations, such as the World Bank, the Organisation for Economic Co-operation and Development (OECD), and the International Monetary Fund (IMF). Brazil’s’ position was formally supported by more than 30 governments and employers’ organizations, for which we are very grateful. Less than half of that supported all the points of view.

These are strong words, because strong words are needed to be voiced against all sorts of injustice. A Committee of Experts that, despite the eminence of their components, does not offer solid technical work, a Committee that operates as a tribunal, receives denunciations as a tribunal, but does not investigate cases and view cases as a tribunal, arguing that solely because there are no formal punishments, a strong case is not required to be made.

This supervisory system does not speak in favour of multilateralism when the values and principles which are the very pillars of the multilateral system are precisely those that are missing here today, and every day, in the ILO supervisory system. Brazil has engaged in good faith and constructive spirit with the ILO; however, there is a limit to our ability or willingness to continue in that engagement if a dialogue cannot be established and responses are biased and unfounded. Should this undesirable situation remain unchanged, Brazil reserves the right to consider all available options. Having said that, as we see, the position of the CAS reflects the views of the negotiations between employers and employees and does not reflect the ILO’s vision.

Brazil would like to thank the Chair for the wise and serene conducting of the proceedings. We also recognize the Committee’s ability to take into account information provided by Brazil and moderate its conclusions. Certainly, an evolution with regards to the last three years. Brazil will remain committed and compliant with the Organization’s Conventions, with the creation of more jobs, to lifelong learning strategies and to addressing the challenges of the future of work.