Definitive Report - REPORT_NO208, June 1981

CASE_NUMBER 1002 (Brazil) - COMPLAINT_DATE: 15-SEP-80 - Closed

1. 118. The complaints are contained in communications of the Trade Unions International of Public and Allied Employees and the World Federation of Trade Unions dated 15 and 26 September 1980, respectively. The Government replied in a communication dated 25 February 1981.
2. 119. Brazil has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Allegations of the complainants

1. 120. The complainants allege that on 15 August 1980, Mr. José Antonio Nania, Vice-President of the San Pablo Hospital Employees' Association, was notified that his contract of employment was terminated "without due grounds".
2. 121. According to the complainants, despite the mention of "without due grounds" in the notice of termination, this measure was really taken because of Mr. Nania's participation, as representative of his association, in a meeting held by the Trade Unions International of Public and Allied Employees last July in Lima.

B. The Government's reply

1. 122. In its communication of 25 February 1981 the Government states that section 566 of the Consolidation of Labour Laws provides that track unions may not be formed by government employees or employees of quasi-governmental institutions, thus expressly excluding public employees from the right to organise. The Government also states that Mr. Nania's status as a public employee debarred him from the exercise of trade union activities as a leader, such as participation in the trade union meeting held in Lima, which he attended without the prior authorisation of the competent authority.
2. 123. The Government further states that the dismissal of Mr. Nania was due above all to repeated neglect of his duties, which he justified by the assistance he was lending to the San Pablo Hospital Employees' Association. It adds that Mr. Nania's post did not entitle him to trade union immunity or to the temporary job security which is granted to trade union leaders under the Consolidation of Labour Laws.

C. The Committee's conclusions

1. 124. While noting that the dismissal of Mr. Nania was due to repeated neglect of his duties, the Committee observes that the notice of dismissal expressly states that the dismissal was made "without due grounds" and that the notice is dated 15 August 1980. The Committee further observes that the legislation excludes public employees from the right to organise and hence to carry on trade union activities and grants special protection against dismissal only to trade union leaders who are not public employees.
2. 125. The Committee must draw the attention of the Government to the fact that exclusion of any category of workers - with the exception of the armed forces and the police - from the right to organise is contrary to the principles of freedom of association and that, in accordance with the provisions of Convention No. 96, which has been ratified by Brazil, the safeguards provided for by the Convention, in particular protection against acts of anti-union discrimination such as dismissal, must be extended also to persons employed by the State or in the public sector who do not act as agents of the public authority. The Committee draws attention to the fact that the same position has for many years been taken by the Committee of Experts on the Application of Conventions and Recommendations.
3. 126. In view of the different treatment established by the legislation in trade union matters for persons who are public employees and for those who are not, the Committee does not rule out the possibility that the trade union function and activities of Mr. Nania may have had a decisive influence in his dismissal. The Committee also considers that a harmonious development of labour relations and freedom of action by occupational organisations would be advanced if Mr. Nania were to be reinstated in his former job and requests the Government to consider the possibility of taking steps to this end.

The Committee's recommendations

1. 127. In these circumstances, the Committee recommends the Governing Body to approve the present report, in particular the following conclusions:
   • The Committee requests the Government to consider the possibility of taking steps for the reinstatement of Mr. Nania in his employment.
   • The Committee draws the attention of the Government to the fact that the right to organise should apply to all public servants and that protection against acts of anti-union discrimination should also be extended to persons employed by the State or in the public sector who do not act as agents of the public authority.