Report in which the committee requests to be kept informed of development - Report No 265, June 1989

Case No 1461 (Brazil) - Complaint date: 17-JUN-88 - Closed

1. 301. The allegations presented by complainants in these two cases were
   • contained in the following communications: from the International
   • Confederation of Free Trade Unions (ICFTU) dated 17 June and 14 November 1988
2. and 5 January 1989, from the World Confederation of Organisations of the
   • Teaching Profession (WCOTP) dated 9 November 1988 and from the World
   • Federation of Trade Unions (WFTU) dated 15 November 1988. The Government sent
   • its observations and information in reply to these allegations in letters
   • dated 9 February and 14 April 1989.
3. 302. Brazil has not ratified the Freedom of Association and Protection of
   • the Right to Organise Convention, 1948 (No. 87), but it has ratified the Right
   • to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 303. In its initial complaint of 17 June 1988, the ICFTU explains that
   • workers in the service of the State launched several protest actions at the
   • national level in April 1988 against Government Decree No. 2425 of 1988
   • freezing for two months (April-May) the salaries of federal public employees
   • and of workers in state enterprises. In view of the Government's refusal to
   • enter into discussions with the trade unions, the trade union organisations in
   • the public sector and state enterprises decided to call a 48-hour strike on 3
2. and 4 May 1988. The Government reacted by stating that public employees may
   • not strike, that any strikes that took place would be treated with the full
   • severity of the law and that unlawful strikes would be followed by dismissals
   • (public statement by the Minister of the Economy on 8 April 1988).
3. 304. The ICFTU goes on to say that the strike was called by 163 trade union
   • organisations, representing 1 1/2 million workers, and that it paralysed fully
   • or partly all the sectors affected by the Decree, namely oil, metallurgy, the
   • ports, electricity, chemicals, banks, railways, mining and telephones. The
   • striking trade union organisations appointed a national co-ordination
   • committee of representatives of workers in state enterprises and of public
   • employees. On 4 May the co-ordinating committee requested a meeting with the
   • Ministers of Labour and of the Economy. The former did not open negotiations
   • and the latter refused to receive the workers' representatives.
4. 305. The Government called in the army to repress the strike and to occupy
   • the Petrobras and Duque de Caxias oil refineries in the State of Rio de
   • Janeiro. At the Cubatao refinery in Sao Paulo, 400 workers coming off a shift
   • were forced by the army to stay and work the following shift - which meant
   • sleeping and eating in the refinery.
5. 306. At EMBRAER, an aeronautics enterprise at San José dos Campos in the
   • State of Sao Paulo, 242 workers were dismissed, including the works committee
   • and trade union leaders. The aeronautics police forced the strikers at bayonet
   • point to return to work.
6. 307. At the Jaguariri copper mines in the State of Bahia, 68 workers,
   • including 18 trade union leaders, eight members of the works committee and ten
   • directors of the Public Employees' Association were dismissed.
7. 308. Still in the mining sector, at Carajás in the State of Pará, 17 trade
   • union leaders of the local association were dismissed and expelled from their
   • accommodations (which belong to the enterprise); they were warned that they
   • would be expelled on 26 May. Twelve workers from Puerto de Santos were also
   • dismissed.
8. 309. In a subsequent communication dated 14 November 1988, the ICFTU further
   • indicates that since 7 November 1988, 2,000 workers from the Metallurgical
   • Trade Union of the Volta Redonda National Iron and Steel Company are on strike
   • and are occupying the plant to secure the recovery of the 26 per cent wage
   • losses of recent months, a wage readjustment of 17.68 per cent for the month
   • of July, the reinstatement of 70 of their colleagues who were dismissed
   • following an earlier strike, and a six-hour working day on the basis of three
   • daily shifts.
9. 310. On 9 November 1988, the ICFTU continues, the police and the army raided
   • the plant at 5 p.m., using tear-gas and sub-machine guns; they killed five
   • workers and left dozens seriously injured. The trade unionists who were killed
   • are Joao Carlos Barroso, William Fernandez Leita, Wladimir Freitas Monteiro,
   • Victor Adriani and Vincente Silva. According to the ICFTU, the plant is still
   • occupied by over 1,000 armed soldiers and surrounded by tanks.
10. 311. The WFTU, in its complaint of 15 November 198, denounces the events at
    • Volta Redonda and claims that 20,000 workers are on strike and that, in
    • addition to the five workers who were killed (and it cites the same names as
    • those given by the ICFTU), 43 were injured and four persons - Mauricio Plata,
    • José de Almayda, Osvaldino Gómez and Marcelino Alvez - are missing. The WFTU
    • adds that on 11 November 1988, 700 workers from the National Iron and Steel
    • Company of Rio de Janeiro, together with workers from the Casa Piedra Mining
    • Company in the State of Minas Gerais, came out on strike in solidarity with
    • the workers of Volta Redonda and that five workers were injured in
    • confrontations with the army.
11. 312. The ICFTU, however, in a letter dated 5 January 1989, amends its
    • previous letter stating that three, not five, workers were killed: Mr.
    • Fernandes Filho and Mr. Freitas Monteiro who were shot, and Mr. Barroso who
    • died after his skull was broken by blows.
12. 313. The WCOTP, in its letter of 9 November 1988, denounces the violent
    • intervention by the police (with tear-gas and cavalry charges) on 27 October
13. 1988 in front of the Bandeirantes Palace, the headquarters of the Governor of
    • the State of Sao Paulo, to disperse a peaceful demonstration by students. The
    • Confederation states that ten demonstrators were injured. It also explains
    • that the teachers and employees of three universities of Sao Paulo, members of
    • the "Andes Association", have been on strike since September 1988, claiming
    • salary adjustments to cope with galloping inflation.
    • B. The Government's replies
14. 314. In its first reply of 9 February 1989, the Government furnishes a
    • certain amount of information and observations concerning the allegations made
    • by the WCOTP concerning the alleged anti-union reprisals against teachers,
    • students and employees of the University of Sao Paulo on 27 October 1988
    • during a demonstration in respect of pay claims. In this connection the
    • Government states that the Regional Delegation for Labour of Sao Paulo, which
    • it consulted on the matter, had informed it that employees of the university
    • had indeed organised a campaign in front of the headquarters of the Governor
    • of the state with a view to obtaining better salaries within the framework of
    • the municipal election campaign of 1988. The Government confirms that the
    • persons concerned held several public demonstrations but claims that none of
    • these took place near the Governor's Palace or involved a dispute with the
    • state military police. The Government states that an investigation is being
    • carried out by the competent bodies of the Government of the State of Sao
    • Paulo to determine who was responsible.
15. 315. In another reply, dated 14 April 1989, concerning allegations by the
    • ICFTU in respect of anti-union reprisals against public employees and workers
    • in state enterprises, following a 48-hour strike in support of pay claims in
16. May 1988, the Government claims that an attempt was made by the Ministry of
    • Labour to negotiate with the strikers but that it had to be abandoned because
    • of the latter's uncompromising attitude in refusing to leave the premises of
    • the enterprises they were occupying.
17. 316. The Government goes on to explain that the presence of the military in
    • the Duque de Caxias oil refinery was designed to protect public property and
    • avoid it being damaged and that this helped to ensure that the strike remained
    • peaceful.
18. 317. Still according to the Government, the workers who were dismissed at
    • Porto Santos have all been reinstated following negotiations.
19. 318. The Government states that the account given of the events which took
    • place at the EMBRAER enterprise is inaccurate. It maintains that on 9 and 10
    • August 1988 workers of this enterprise went on strike claiming a 30 per cent
    • wage increase with the support of the Metallurgical Trade Union which had
    • remained inside the plant on 9 August when the strikers occupied the works. On
20. 10 August, after negotiations had broken down, the strikers withdrew from the
    • enterprise, leaving only 155 workers inside who were turned out on orders from
    • the Aeronautics Ministry, which has jurisdiction over the said enterprise. The
    • Government goes on to explain that the enterprise dispersed these 155 workers
    • and opened an investigation to determine responsibilities. The investigation
    • resulted in the dismissal of 119 workers and the dismissals were approved by
    • the Metallurgical Trade Union itself.
21. 319. As regards the dismissal of the three trade union leaders, Benedito
    • Carlos de Sousa, Francisco Assis de Souza and Joao Pedro Pires, a judicial
    • inquiry was opened before the Conciliation and Arbitration Board of Sao José
    • dos Campos to determine whether there had been serious misconduct constituting
    • just grounds for the dismissal of the said trade union leaders. In the course
    • of the appeal lodged by the dismissed leaders, the enterprise proposed an
    • agreement, which was ratified. According to this agreement, the leaders
    • secured the guaranteed maintenance of their rights as though they had not been
    • dismissed on just grounds. This agreement was approved by the regional
    • tribunal of the second region of Sao Paulo.
22. 320. Thirty-three of the 155 workers whose dismissal had been approved by
    • the trade union were reinstated in the enterprise.
23. 321. The Government concludes its statement on this allegation by specifying
    • that the strike in question was judged to be illegal by the Sao Paulo Labour
    • Court as a result of which, at the time, the workers concerned were deemed to
    • have committed serious misconduct. At the same time, the Government claims, no
    • one was dismissed on unjust grounds.
24. 322. The Government refutes, moreover, the allegations concerning the
    • dismissal of 17 trade union leaders at Carajás in the State of Pará.
25. 323. More generally, the Government specifies, as regards the pay freeze for
    • the months of April and May 1988 of federal public employees and of workers in
    • state enterprises, that in fact Legislative Decree No. 2453 of 1988 provided
    • for a 16.19 per cent pay increase for August 1988 based on the cost of living
    • for April 1988, and that Act No. 7686 of 1988 established 17.68 per cent pay
    • increases for November 1988 based on the cost of living for May 1988.
26. 324. As regards the allegations made both by the ICFTU and by the WFTU
    • concerning the social conflict in November 1988 within the National Iron and
    • Steel Company at Volta Redonda in the State of Rio de Janeiro, the Government
    • states, in a further communication dated 14 April 1989, that this
    • mixed-economy company is one of the largest iron and steel works in the
    • country and that it generates thousands of jobs and is a major source of
    • foreign currency. The Government confirms that on 7 November 1988 a strike
    • broke out among the 20,000 workers of this enterprise, as stated by the WFTU
    • (not 2,000 as stated by the ICFTU). The Government also confirms that the
    • strikers demanded pay increases and better conditions of work as well as the
    • reinstatement of workers who had been dismissed for having participated in a
    • previous strike. The Government adds that the strikers occupied the steel
    • works, which are a vital sector of the plant housing the blast furnaces.
27. 325. According to the Government, the aggressiveness which marked the
    • atmosphere from the beginning of the dispute and which resulted in a deadlock
    • in the negotiations on the claims, together with a series of incidents in
    • which the property of the iron and steel works was damaged, motivated the
    • injunction requisitioning the plant and the appointment of a judge, Mr. Moisés
    • Cohen, to prevent further damage being done to the Company's property. In view
    • of the difficulties encountered by the officer of the law appointed by the
    • judge, the latter decided that energetic measures were called for to safeguard
    • the property and people who are lawfully in the enterprise. He therefore
    • called out the 220th infantry battalion, who were stationed at Barra Mansa and
    • who ordered everyone who was unlawfully within the enterprise to leave it so
    • as to safeguard the property belonging to the said enterprise.
28. 326. Still according to the Government, the exasperation and aggressiveness
    • of the strikers and the breakdown of the negotiations for a peaceful
    • withdrawal from the works led to direct confrontation between the military and
    • the workers and the death of three persons (not five as originally stated by
    • the complainants).
29. 327. In order to clarify the facts and to establish who was responsible, the
    • following proceedings were instituted: (1) a police inquiry into the murder on
30. 11 November 1988 of William Fernandes Leita and Wladimir Freitas Monteiro,
    • both of whom were workers of the National Iron and Steel Company. This inquiry
    • led to court proceedings for infringement of Article 121 of the Penal Code
    • before the Penal Court of Volta Redonda; (2) a second police inquiry, into the
    • murder of Carlos Augusto Barroso, another worker of the said enterprise, which
    • also resulted in court proceedings; (3) three further police inquiries in
    • respect of the injuries sustained by Victor Adriano Vicente da Silva, Antonio
    • da Silva Nascimiento, Gleidson Costa de Sousa and José Luis Torres Botelho.
    • The three inquiries culminated in penal proceedings against members of the
    • army for infringement of Article 129 of the Penal Code. According to the
    • Government, the first person named was a passer-by who had nothing to do with
    • the strike in question.
31. 328. The Government also states that the records of the police of Volta
    • Redonda make no mention of any person reported missing and that no complaint
    • in this respect has been lodged before any other body.

C. The Committee's conclusions

1. 329. The Committee notes with concern that these two cases relate to
   • measures of repression against strikers that are particularly serious since
   • the Government itself does not deny that, following action in respect of pay
   • claims, workers in the public service and in state enterprises have been
   • dismissed, injured and even killed. The Government admits that it called in
   • the army and police to ensure the maintenance of law and order. According to
   • the complainant, in some instances this recourse to the army and the police
   • was aimed at expelling workers who were occupying their enterprise. The
   • Government indicates, however, that some dismissed trade union leaders or
   • militants were subsequently reinstated.
2. 330. The Government also indicates that the strikes or demonstrations which
   • originated in opposition to Government Decree No. 2425 of 1988 in respect of
   • the remuneration of these categories of employees (which remuneration was
   • frozen for two months - April-May 1988 - instead of keeping pace with
   • inflation) were illegal since they were called by workers in the public
   • service and in state enterprises who do not enjoy the right to strike.
3. 331. The Committee deplores the fact that a number of workers were dismissed
   • for going on strike and have not been reinstated and the fact that army
   • intervention to expel strikers who were occupying their enterprise resulted in
   • injury to some persons and that others were killed.
4. 332. As regards these violent deaths and the injuries inflicted, the
   • Committee observes that police inquiries were undertaken to determine the
   • facts and punish those responsible and that court proceedings are under way to
   • judge the members of the army who were responsible for the murders and for the
   • injuries inflicted on trade unionists. Without prejudice to these proceedings,
   • the Committee recalls that trade union rights can only be exercised in a
   • climate that is free from violence, pressure or threats of any kind against
   • trade unionists; it is for governments to ensure that this principle is
   • respected (see paragraph 70 of the Digest of Decisions and Principles of the
   • Freedom of Association Committee of the Governing Body) . The International
   • Labour Conference, in a resolution concerning trade union rights and their
   • relation to civil liberties, emphasised that the lack of civil liberty renders
   • the concept of trade union rights meaningless and that the rights conferred on
   • organisations of workers and employers must be based on respect for these
   • civil liberties. The Committee has endorsed this principle on innumerable
   • occasions.
5. 333. Consequently, the Committee urges the authorities to adopt effective
   • measures with a view to restoring a normal situation and to inform it of the
   • outcome of the court proceedings under way concerning those responsible for
   • the murder and injury of trade unionists.
6. 334. As regards the military and police repression inflicted on the many
   • categories of strikers who are considered by the Government of Brazil to be
   • public employees and workers in state enterprises who do not enjoy the right
   • to strike in support of legitimate pay claims, the Committee can only recall
   • yet again the importance it attaches to the strike as a legitimate means of
   • supporting claims - a means of which workers and their organisations should be
   • able to avail themselves for the defence of their occupational interests. The
   • Committee recalls once again the principle established by the supervisory
   • bodies of the ILO in this respect, namely that the right to strike can be
   • restricted or even prohibited in the civil service or in essential services,
   • whether public, semi-public or private, but that these restrictions or
   • prohibitions would be meaningless if the laws and regulations established too
   • broad a definition of the public service or of essential services.
   • Consequently, the Committee has frequently pointed out that a prohibition on
   • strikes should be confined to civil servants acting as representatives of the
   • public authorities or in services whose interruption would endanger the life,
   • personal safety or health of the whole or part of the population.
7. 335. In the Committee's opinion, in the circumstances of the present case,
   • the right to strike should not be denied to workers in the sectors referred to
   • in the present case, provided that the strikes of the workers in these sectors
   • do not endanger the life, health or safety of the population.
8. 336. The Committee therefore requests the Government to provide it with
   • information on all measures it contemplates in order to bring its laws and
   • regulations in line with the above-mentioned principles.
9. 337. It also urges the Government to endeavour to obtain the reinstatement
   • of all workers who were dismissed in connection with the labour disputes
   • mentioned by the complainants in the present cases.

The Committee's recommendations

1. 338. In the light of its foregoing conclusions, the Committee invites the
   • Governing Body to approve the following recommendations:
     • a) The Committee deplores the anti-union violence that resulted in violent
   • deaths and injuries in confrontations with the military and police forces who
   • expelled strikers in sectors wrongly considered by the Government to be
   • essential.
     • b) The Committee requests the Government to adopt effective measures in
   • order to re-establish a normal situation and to inform it of the outcome of
   • the court proceedings under way concerning the persons responsible for the
   • murder and injuries perpetrated against trade unionists, especially in Volta
   • Redonda.
     • c) In the circumstances of this case, the Committee is of the opinion that
   • the right to strike should not be denied to the workers of sectors referred to
   • in the present case, provided the strikes do not endanger the life, personal
   • safety or health of the population. The Committee requests the Government to
   • keep it informed of all measures it is contemplating to bring its laws and
   • regulations concerning strikes in line with these principles.
     • d) The Committee urges the Government to endeavour to obtain the
   • reinstatement of all workers dismissed in connection with the labour disputes
   • mentioned by the complainants, especially in the EMBRAER aeronautics
   • enterprise of San José dos Campos, and to keep it informed of developments in
   • the situation in this respect.