Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

Employment Promotion and Protection against Unemployment Convention, 1988 (No. 168) - Brazil (Ratification: 1993)

The Committee has examined the information and the legislation supplied by the Government in its reports, the latest being supplied in 1998.

I. The Committee would like to draw the Government's attention to the following points:

Article 10, paragraph 1, in conjunction with Article 12 of the Convention. The Committee notes that, according to section 3(V) of Act No. 7.998 of 11 January 1990, regulating the programme of unemployment insurance, the right to unemployment benefit is conditioned on the person concerned "not having income of whatever nature sufficient for the maintenance of him and his family". It wishes to point out in this respect that the possibility of limiting the protection afforded in the light of the resources of the beneficiary and his or her family, envisaged in Article 12, paragraph 2, of the Convention, is not applicable to the Brazilian unemployment insurance system, since it covers only employees and not all residents, and subjects the entitlement to benefit to a qualifying period of employment. It is to be noted, however, that means testing, as defined in Article 16 of the Convention, could be applied to any benefit provided beyond the initial period of protection in accordance with Article 19, paragraph 2(b).

Article 10, paragraph 1, in conjunction with Article 20(b) and (c). According to section 3 of Act No. 7.998 of 1990 and section 3 of resolution No. 64 of 28 July 1994, establishing procedures for the provision of unemployment insurance, the right to unemployment benefit is ensured only to "workers dismissed without just cause, including an indirect one". The Committee wishes to draw the Government's attention that the definition of the contingency given in Article 10(1) of the Convention is not limited to cases of dismissal without just cause, but covers all cases of loss of earnings due to inability to obtain suitable employment, including where the person concerned becomes unemployed after the end of a fixed-term contract. However, under Article 20(b) and (c) of the Convention, the benefit may be refused to persons who had deliberately contributed to their own dismissal or who were not dismissed but have left employment voluntarily without just cause.

Article 19, paragraphs 2(a) and 3. The Committee recalls that, under these provisions of the Convention, the initial duration of the benefit may be limited to 26 weeks in each spell of unemployment, or to 39 weeks over any period of 24 months; where, as in Brazil, this duration varies with the length of the qualifying period, the average duration of the benefit shall be at least 26 weeks. The Committee notes in this respect that, according to section 2(2) of Act No. 8.900 of 30 June 1994 and section 5 of resolution No. 64 of 1994, the maximum duration of unemployment benefit varies from three to five months depending on the length of the previous employment of the person concerned within the reference period of 36 months: it is three months for persons having between six and 11 months of previous employment, four months for those having 12 to 23 months of previous employment, and five months after at least 24 months of previous employment. The Committee wishes to point out that the average duration of the benefit of at least 26 weeks required by the Convention is thus not attained.

Article 19, paragraph 2(b). The Committee recalls that, in the event of unemployment continuing beyond the initial period of benefit established in paragraph 2(a) of this Article, the benefit should continue to be paid for a prescribed supplementary period, the duration of which may be limited by the national legislation. The amount of this additional benefit may be calculated in the light of the resources of the beneficiary and his or her family (see above under Article 10, paragraph 1).

The Committee hopes that the Government will indicate in its next report the measures taken or contemplated with a view to giving full effect to the above-mentioned Articles of the Convention.

II. The Committee would like the Government to provide additional information in respect of the following Articles:

Article 10, paragraph 2. The Committee notes that, according to the information supplied by the Government, the Brazilian legislation does not recognize the contingency of full unemployment and suspension of earnings due to a temporary suspension of work where the employment relationship has not been terminated, as in these cases workers continue to receive their wages in full. It asks the Government to indicate the provisions of the legislation which guarantee payment of full wages in the cases where, particularly because of economic, technological, structural or similar reasons, temporary reduction in the normal or statutory hours of work or temporary suspension of work occurs without any break in the employment relationship.

Article 10, paragraph 3. The Government indicates that the Brazilian legislation does not contemplate provision of unemployment benefit to workers who receive income, including from part-time employment. It refers, however, to academic studies carried out on this question with a view to possible modification of the legislation. The Committee would appreciate if the Government would indicate the results of these studies.

Article 11. Please supply the statistical information on the scope of the unemployment insurance scheme as required by the report form under this Article of the Convention.

Article 15, paragraph 1. Please supply information, including statistics, requested in the report form under this Article of the Convention, indicating in particular whether the unemployment benefit is calculated in accordance with the method specified in paragraph (a) or (b) of this Article. Please indicate also the current amount of the national minimum wage and the amount which provides the minimum essential for basic living expenses.

Article 18, paragraph 1. The Committee notes the information supplied by the Government. It would like the Government to indicate whether, and if so, under which provision of the legislation, the payment of the unemployment benefit would begin only after the expiry of a waiting period.

Article 20(f). Please indicate whether use has been made of this provision of the Convention and, if so, supply the text of the relevant legislation.

Article 20(g). Sections 3(III) and 7(II and III) of Act No. 7.998 of 1990 and section 14(II) of resolution No. 64 of 1994 provide for the suspension of unemployment benefit when the person concerned is in receipt of another continuous social security benefit subject to certain exceptions. Please indicate whether and under which provision, in case of suspension, any part of the unemployment benefit which exceeds that other social security benefit, will be effectively paid to the person concerned, in accordance with this provision of the Convention.

Article 21, paragraph 2. Section 8(I) of Act No. 7.998 of 1990 provides for the withdrawal of the unemployment benefit in case a worker refuses employment corresponding to his qualifications and previous wages. Please indicate whether and how other criteria of assessing the suitability of employment offered which are specified in this provision of the Convention are taken into account, particularly as regards situations where an offer of employment involves change of residence and thus seriously affects the personal and family situation of the person concerned.

Article 22. The Committee recalls that Article 22 of the Convention offers the choice between two methods of coordinating unemployment benefit with severance pay received by protected persons from any source under national legislation or collective agreements: (a) the unemployment benefit may be suspended for the period covered by severance pay; or (b) the severance pay may be reduced by an amount of the unemployment benefit for this period. In this respect the Government states that, according to the Brazilian legislation, in case of unemployment the worker should withdraw the sum to which he is entitled from his deposit account in the Duration of Employment Guarantee Fund ("Fundo de Garantia por Tempo de Serviço" (FGTS)) and only afterwards have recourse to the unemployment insurance. The Committee would like the Government to specify in its next report, with reference to appropriate legislative provisions, to what extent the payments made by the FGTS correspond, by their nature, to the severance pay contemplated by the Convention, and to explain in detail the manner in which these payments are coordinated with the unemployment benefit.

Article 23, paragraph 1. Please indicate the provisions of the legislation confirming the statement made in the Government's report that medical care is free of charge for employed as well as for unemployed workers, including members of their families.

Article 24, paragraph 1. According to the information given in the report under Article 5 of the Convention, the periods during which unemployment benefit is paid are not taken into consideration for acquisition of the right to the old-age and invalidity pension, and are not relevant with respect to the acquisition of the right to medical care which is provided free of charge to all workers and their families. There is, however, no corresponding information with respect to the survivors', sickness, maternity and family benefits also mentioned in Article 24(1) of the Convention. The Committee would appreciate if such information were to be included in the Government's next report. It would also like the Government to consider the possibility of taking into account the periods of unemployment benefit for the acquisition of the right to and, where appropriate, calculation of the above-mentioned cash benefits, so as to give fuller effect to this provision of the Convention.

Article 25, paragraph 1. The Committee notes from the Government's reports that the adjustment of the social security legislation to the situation of part-time workers is being undertaken. It would ask the Government to provide details in its next report, indicating in particular what branches of social security are concerned.

Article 26. The Government indicates in its last report that the national employment system provides assistance in all cases covered by this Article of the Convention and that specific programmes exist in various provinces of the federation for particular categories of persons, such as young persons entering the labour market, persons with physical handicaps, risk groups, workers in the informal sector. The Committee would like the Government to indicate in its next report which categories of new applicants for employment, out of the ten categories covered by Article 26 of the Convention, receive, under prescribed terms and conditions, the social cash benefits contemplated by this provision of the Convention.

Article 27, paragraph 1. The Committee notes that section 11(3) of resolution No. 64 of 1994 allows for the lodging of a complaint against the decision refusing unemployment benefit, of which the person concerned is informed in writing, to the Ministry of Labour which is administering the scheme. It further notes from the Government's report that the officials of the Ministry instruct the person concerned on the complaints procedure, if requested. Please indicate, with reference to legislative provisions: (1) what provisions ensure the right of appeal against the decision of the Ministry of Labour taken under section 11(3) to an independent body; (2) whether, in communicating its decision refusing the benefit, the Ministry of Labour also informs in writing the person concerned of the reasons for the refusal and the procedures available for appeal to such a body; and (3) how these procedures are operating in practice, taking into account the Convention's requirement that they should be "simple and rapid".

Article 27, paragraph 2. Please indicate the provisions of the legislation which ensure the possibility for the claimant to be represented or assisted in the appeal procedure by a qualified person of his or her choice or by a delegate of a workers' organization or of an organization representative of protected persons.

[The Government is asked to report in detail in 2001.]