Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Article 1 of the Convention. Protection against anti-union discrimination. The Committee notes the Government’s reference in its report to the provisions of the Constitution of the Republic and the Consolidation of Labour Laws which, in its view, give effect to this Article of the Convention. In its previous comments, the Committee noted the various complaints examined by the Committee on Freedom of Association (Cases Nos 2635, 2636 and 2646) and observed that, in the context of these cases, the Government had indicated that:

Repetition

... although freedom of association is protected under the Constitution, the national legislation does not define anti-union acts and this prevents the Ministry of Labour and Employment from taking effective preventive and repressive measures against conduct such as that reported in this case; in order to resolve the issue the Government, together with workers and employers within the National Labour Forum (FNT), has prepared a proposal for trade union reform (No. 369/05, currently in the final stages before the National Congress) which contains a more complete definition of anti-union acts and provides for penalties which may be imposed on offenders by the Ministry of Labour and Employment; the draft Bill on trade union relations currently before the National Congress contains a list of situations which constitute anti-union conduct (making recruitment or continued employment subject to membership, non-membership or termination of membership of a trade union organization, dismissing or discriminating against a worker on the grounds of his or her membership or activities in a trade union organization, participation in a strike or representation in the workplace, etc.); any sound proposal to resolve this issue must reflect the provisions of Conventions Nos 98 and 135 and establish effective mechanisms for the imposition of penalties on offenders, a point which raises differences of opinion between the representatives of employers and workers as to the amount of the fines to be imposed for anti-union conduct; the proposal put forward by the FNT fills the legislative gap by defining more fully the anti-union acts which may be committed by employers and workers, while at the same time imposing penalties which ensure the effectiveness of the legislation; and it was not possible to achieve a consensus in the FNT on the issue of penalties, in particular with regard to the amount of the fine to be imposed for anti-union conduct, but while this has delayed the passage of the draft Bill, it has in no way diminished the Government’s expectation that the draft will be approved as soon as possible.

The Committee previously expressed the hope that, in the context of the draft trade union reform to which the Government referred, remedies and sufficiently dissuasive penalties against acts of anti-union discrimination would be established explicitly with a view to ensuring that effect is given in practice to Article 1 of the Convention. The Committee notes the Government’s indication in its report that: (1) with a view to proposing and implementing the trade union and labour reform, the Government established the Labour Relations Council (CRT) (an advisory tripartite and joint collegial body); (2) the role of the Council is to issue opinions on proposals made for the purpose of democratizing industrial relations in the country, updating trade union and labour legislation, promoting collective bargaining, the self-resolution of labour disputes, the creation of an environment conducive to the generation of employment and decent work through dialogue and negotiations with the Government; (3) two meetings of the CRT were held in 2011 to approve its internal rules; and (4) proposed draft legislation on employment relations and trade union organization has not yet been submitted. The Committee hopes that, in the context of the work of the CRT, it will be possible to prepare draft legislation explicitly setting out remedies and sufficiently dissuasive sanctions against acts of anti-union discrimination. The Committee requests the Government to provide information in its next report on any progress in this regard.

Article 4. In its previous comments, the Committee requested the Government to take measures to amend Act No. 10192 of February 2001 concerning additional measures under the Plan Real, section 13 of which provides that automatic price index-related wage increases or adjustments may not be included in agreements or “dissidios coletivos”, so that the parties to collective bargaining can decide freely whether they wish to agree on automatic wage adjustment, particularly in collective agreements of long duration. Noting that the Government does not refer to this matter in its report, the Committee recalls that the parties to collective bargaining should be able to decide freely and voluntarily whether they wish to agree on automatic wage adjustments, particularly in collective agreements of long duration. Under these conditions, the Committee once again requests the Government to take the necessary measures to amend the legislation as indicated above, insofar as it limits the possibilities of the parties in wage bargaining.