Definitive Report - Report No 305, November 1996

Case No 1871 (Brazil) - Complaint date: 20-FEB-96 - Closed

Allegations: Discrimination against a trade union organization

1. 71. The complaint was sent in a communication from the World Federation of Trade Unions (WFTU) dated 20 February 1996. The WFTU sent additional information in a communication dated 19 March 1996. The Government sent its observations in a communication dated 31 May 1996.
2. 72. 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 complainant's allegations

1. 73. In its communications dated 20 February and 19 March 1996, the World Federation of Trade Unions (WFTU) alleges that its affiliate, the General Confederation of Workers (CGT) of Brazil, is suffering anti-union discrimination at the hands of the Government, which has excluded it from the country's tripartite bodies (the Social Security and Health Council, the Length of Service Guarantee Fund Council and other tripartite bodies in which the other trade union confederations participate). In addition it has not included CGT representatives among the delegates to sessions of the International Labour Conference, inclusive of the 83rd Session (1996) in which the CGT should have legitimately participated as official workers' delegate in keeping with the established order of rotation.
2. 74. The WFTU explains that the CGT was established in 1986, that it represents over 8 million members, and to date has held three national congresses. The third of these took place in September 1994 in Sao Paulo, with the participation of 811 national trade union organizations (trade unions, federations and confederations), and international trade union delegations from 40 countries in Europe, Africa, Asia and Latin America which participated as observers. In addition, representatives of the Brazilian authorities, Parliament and political parties were present at the opening of the third congress.
3. 75. The WFTU adds that the CGT is a third-level representative organization, made up of first and second-level trade union bodies, which carries out considerable activities in Brazil through various social programmes such as: (a) food programmes; (b) health programmes and AIDS prevention programmes; (c) literacy programmes and skills-enhancement programmes for workers. These activities are governed by an agreement with the Ministry of Education and Culture and are supported by individual states. The project contributed to the training of over 6,000 workers in 1994, and 3,200 in 1995; (d) other CGT activities have been recognized and acclaimed by various social institutions.

B. The Government's reply

1. 76. In its communication of 31 May 1996 the Government explains that the State of Brazil does not interfere in the nomination of workers' representatives, the membership of tripartite councils or the composition of delegations to sessions of the International Labour Conference or other international tripartite technical meetings.
2. 77. The Government adds that attempts to include the General Confederation of Workers among the organizations invited to designate a representative was categorically refused by the other Brazilian trade union confederations. The Government attaches a letter from these three confederations opposing the nomination of a CGT representative as a delegate to the 80th Session of the International Labour Conference (1993) which states that "everyone is aware that it does not fulfil any of the representation criteria". The Government concludes by saying that it is complying with article 3, paragraph 5, of the ILO Constitution and that it carries out consultations with the most representative employers' and workers' organizations and nominates delegates to the International Labour Conference in agreement with such organizations.

C. The Committee's conclusions

1. 78. With regard to the matter of not nominating a representative of the General Confederation of Workers (CGT) as a member of the Brazilian delegation to the International Labour Conference, the Committee recalls that: "The question of representation at the International Labour Conference falls within the competence of the Conference Credentials Committee" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 659). The Committee also wishes to refer to the conclusions presented by the Credentials Committee in 1996, following an objection by the General Confederation of Workers, which are quoted below:
   • The Committee wishes to point out that it is the duty of the Government to take all reasonable steps to evaluate the representative character of the different organizations in accordance with international law and practice and that the Government had an obligation to consult all the most representative organizations pursuant to article 3, paragraph 5, of the ILO Constitution. However, since the objecting organization had not provided any evidence in support of its objection, the Committee decided not to uphold it. (See International Labour Conference, Provisional Record 5B, 83rd Session, Geneva, 1996.)
2. 79. As for the exclusion of the General Confederation of Workers (CGT) from the country's tripartite bodies, the Committee notes the Government's general statement that the State does not interfere in the nomination of workers to be included in tripartite councils, and its reference to the opinion of the other three national confederations which maintain that the CGT does not fulfil any of the representation criteria; the complainant organization has however indicated that the CGT represents over 8 million members and that at its most recent congress 811 trade union organizations participated (trade unions, federations and confederations). The Committee concludes that the CGT's view of the extent of its representation is not shared by the other three confederations, or, and here the facts speak for themselves, by the Government (which has excluded it from national tripartite bodies). The Committee recalls that "it was not called upon to express an opinion as to the right of a particular organization to be invited to take part in joint or consultative bodies unless its exclusion constituted a clear case of discrimination affecting the principle of freedom of association" (see Digest, op. cit., para. 942). However, the Committee stresses the principle whereby "The determination of the most representative trade union should always be based on objective and pre-established criteria so as to avoid any opportunity for partiality or abuse" (see Digest, op. cit., para. 314). As neither the Government nor the complainant has indicated the level of representation of the General Confederation of Workers with respect to the other trade union confederations, or whether any legal procedures exist to determine the representation of existing trade union confederations, the Committee requests the Government to ensure that decisions relating to the composition of national tripartite bodies take this principle duly into account.

The Committee's recommendations

1. 80. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to ensure that decisions relating to the composition of national tripartite bodies take into account the principle whereby the determination of the most representative trade union should always be based on objective and pre-established criteria so as to avoid any opportunity for partiality or abuse.