Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

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

The Committee notes the Government’s report.

Article 4 of the Convention. 1. The Committee notes that for several years it has been referring to the need to repeal section 623 of the Consolidation of Labour Laws (CLT), under the terms of which provisions of an agreement or pact shall be declared void where they are contrary to the standards established by the Government economic policy or the wage policy in force. The Committee notes, with reference to sections 611 to 625 of the CLT, the Government’s indication that in recent years the Executive Authority has sent to the National Congress various draft texts to amend the labour legislation, the central aspect of which is the promotion of negotiation as a means of resolving conflicts between employers and workers. In this respect, the Committee requests the Government to indicate whether any of the draft texts in question envisages repealing section 623 of the CLT and, if not, to take measures to repeal it. The Committee requests the Government to provide information in its next report on any measure taken in practice in this respect.

2. The Committee also notes the Government’s indication that, with a view to overcoming obstacles to freedom of association, the Executive Authority submitted to the National Congress a proposed constitutional amendment (623/98) which, among other matters, envisages the revision of the normative power of the judicial authority and entrusting it with carrying out voluntary arbitration, at the request of both parties, in the event of collective disputes of an economic nature. Indeed, the Committee notes that, in the context of Title VI of the Consolidation of Labour Laws respecting collective labour agreements, it is envisaged in section 616 that, in the event of refusal to engage in collective bargaining, the trade union or the enterprises may have recourse to a "dissídio coletivo" (a procedure before the judicial labour authority) and, where an agreement, pact or award is in force, the "dissídio coletivo"must be lodged 60 days before the expiry date so that the new instrument can enter into force upon such date. The Committee also recalls that, during the technical assistance mission carried out by the Office in 1999, a clear decrease had been noted in recourse to the judicial authorities in the above context. In these conditions, although noting that over three years have elapsed since the submission of Bill No. 623/98, the Committee requests the Government to inform it in its next report of the situation with regard to this text. Furthermore, in the event that the above Bill has not been pursued, the Committee requests the Government to take measures to amend section 616 of the CLT in order to limit recourse to arbitration by the judicial authority to those cases in which it is requested by both parties, in essential services in the strict sense of the term and when, after prolonged negotiation, it is clear that the deadlock in the negotiations cannot be overcome without an initiative by the authorities. The Committee requests the Government to provide statistical information on recourse to the mechanism of "dissídio coletivo".

Articles 4 and 6. 3. The Committee recalls that for many years it has been referring to the need for public servants not engaged in the administration of the State to benefit from the right to collective bargaining. The Committee notes the Government’s statement that: (1) public servants do not enjoy the right to collective bargaining and their terms and conditions of employment are established by law; and (2) there is the possibility that certain categories of public servants considered to be atypical (in state enterprises or joint venture companies) can have recourse to collective bargaining to modify their terms and conditions of employment, but that the utilization of such machinery nevertheless depends on an administrative reform and that the standards that are adopted are intended to regulate labour relations in specific public sectors. The Committee recalls that in its previous observation it noted from the report of the technical assistance mission in 1999 that the recognition of this right for all categories of public servants would entail a constitutional amendment and that the Executive Secretary for Labour had indicated to the mission that discussions on collective bargaining for independent entities and public foundations could take place within the framework of the new administrative reform model and process, since these entities are not included within basic state functions. In these conditions, the Committee requests the Government to provide information in its next report on any measures that are adopted so that the public servants concerned benefit from this right in practice.