Definitive Report - Report No 363, March 2012

Case No 2792 (Brazil) - Complaint date: 31-MAR-10 - Closed

Allegations: The complainant organizations allege that in view of obstructing and preventing bank workers in the exercise of the right to strike, FENABAN member banks seek prohibitory injunctions (and the corresponding court restraining orders) from the courts before the beginning of the strike, on the grounds that protection against this situation is needed; they also allege that the police intervene violently to enforce court restraining orders

1. 362. The complaint is contained in a communication from the Unitary Centre of Workers (CUT), the National Confederation of Financial Sector Workers (CONTRAF), the Federation of Credit Establishment Workers of São Paulo (FETEC/SP) and the Union of Employees of Bank Establishments of São Paulo dated 31 March 2010.
2. 363. The Government sent partial observations in communications dated 11 October and 29 November 2010.
3. 364. 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. 365. In its communication dated 31 March 2010, the CUT, the CONTRAF, the FETEC/SP and the Union of Employees of Bank Establishments of São Paulo state that collective bargaining by trade unions that represent Brazilian bank workers is carried out at a national level. Demands are discussed by a national delegation of workers of the banking sector, and by the National Federation of Banks (FENABAN), which represents the employers. The complainants indicate that the CONTRAF–CUT, the FETEC/SP and the Union of Employees of Bank Establishments of São Paulo, are members of the national delegation of workers of the sector.
2. 366. The complainants indicate that where no agreement is reached between the parties, the workers exercise the right to strike as a way of putting pressure on the employers to reach an agreement to settle the dispute. The complainants indicate that during a strike, the workers set up “clarification commissions” whereby the bank workers on strike seek to provide information in an ordered and peaceful manner for bank employees and clients, and for the public in general, regarding the suspension of activities and the bank workers’ demands.
3. 367. The complainants allege that, in these circumstances and aiming at obstructing and preventing bank workers from exercising the right to strike, the banks (belonging to FENABAN and listed by name in the complaint) seek prohibitory injunctions from the courts (and the corresponding court restraining orders), on the grounds that protection against this situation is needed. The complainants indicate that prohibitory injunctions are a typical civil law mechanism intended to protect private property against looting and disturbance, and that banks use them routinely to justify police repression or to withdraw bank workers’ right to strike and of demonstration. The complainants add that this protection is sought before the courts as a preventive measure, prior to the interruption of activities, in order to obtain court rulings banning the trade unions from taking such actions. According to the complainants, most court orders authorize the use of police force.
4. 368. The complainant organizations indicate that the prohibitory injunctions requested by the banks ban union leaders from coming within 100 metres of the banks, and ban the use of banners, platforms and vehicles with sound-emitting loudspeakers. According to the complainants, these bans make it impossible to persuade workers peacefully to exercise the right to strike.
5. 369. The trade unions declare that their inability to carry out demonstrations against these banks is compounded by the State’s intervention through the use of police force, with prior court authorization. On various occasions the police arrested union leaders and bank workers on strike, which was enough to hobble the trade union during the strike. The complainant organizations indicate that police intervention tends to involve excessive violence and impinges on the bank workers’ right to peaceful demonstration.
6. 370. The complainant organizations further indicate that last year, members of the bank security sector of the Brazilian Federation of Banks, which includes FENABAN, met with members of the military police division of the state of São Paulo to plan joint actions against ongoing strikes. The government of the state of São Paulo tolerates actions that obstruct bank workers’ right to strike. Moreover, the trade unions indicate that in addition to the violent police repression against strikers, court decisions impose daily fines on the trade unions in the sector that go from 5,000 to 100,000 reais. In practice, these fines paralyse the trade unions and hinder their financial survival. The complainants conclude that these prohibitory injunctions prevent workers from carrying out peaceful actions in the exercise of their right to strike.

B. The Government’s reply

1. 371. In its communication dated 11 October 2010, the Government informs that on 13 September 2010 a mediation session was held in which both government and trade union representatives participated, but which was not attended by any employer representatives. On that occasion a date was set for another session in October. In its communication of 29 November 2010, the Government declares that the Labour Secretariat held a second mediation session between the parties on 19 October 2010, without making any progress. In that session, the employers’ representative requested the compilation of the banks’ replies, and the CUT also requested the compilation of the relevant documents. The Government adds that it sent a communication to the government of the state of São Paulo and to the labour courts notifying them of the date of the mediation session but that there was no response regarding the issues under discussion.

C. The Committee’s conclusions

1. 372. The Committee notes that, in this case, the complainant organizations allege that in view of obstructing and preventing bank workers in the exercise of the right to strike, the FENABAN member banks seek prohibitory injunctions before the courts (with the corresponding court restraining orders) before the beginning of the strike, on the grounds that protection against looting is needed. The complainants add that the court restraining orders attached to the prohibitory injunctions ban union leaders from coming within 100 metres of the banks and ban the use of banners, platforms and vehicles with sound-emitting loudspeakers, and they authorize the intervention of the police, which frequently uses excessive violence; according to the allegations, the above is compounded by court orders imposing significant fines on the trade unions.
2. 373. The Committee notes that the Government declares that: (1) on 13 October a mediation session was held in which both government and trade union representatives participated, but which was not attended by representatives of the employer sector; (2) on that occasion, a date was set for another session in October and the Labour Secretariat held a second mediation session between the parties on 19 October 2010, without making any progress; (3) in that session, the employers’ representative requested the compilation of the banks’ replies, and the CUT also requested the compilation of the relevant documents; and (4) a communication was sent from the Government to the government of the state of São Paulo and to the labour courts notifying them of the date of the mediation session, but there was no response regarding the issues under discussion.
3. 374. In this respect, the Committee observes that, according to the allegations, the prohibitory injunctions and the resulting court restraining orders prohibit the staging of strike pickets against the banks during strikes in the sector. The Committee recalls that on numerous occasions it has stressed that “the action of pickets organized in accordance with the law should not be subject to interference by the public authorities” and that “taking part in picketing and firmly but peacefully inciting other workers to keep away from their workplace cannot be considered unlawful. The case is different, however, when picketing is accompanied by violence or coercion of non-strikers in an attempt to interfere with their freedom to work” [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 648 and 651]. Therefore, the peaceful exercise of the right to stage strike pickets in accordance with the above principles should not be enjoined or subject to sanctions. Under these terms, the Committee requests the Government to ensure that the principles on the staging of strike pickets are respected and to communicate them to the relevant parties in the banking sector and in the Judiciary.
4. 375. On the other hand, as regards the alleged intervention of the police to enforce court restraining orders often with use of excessive violence – which the Government has not denied in its reply – the Committee observes that, according to the allegations, the police intervene even when pickets are conducted peacefully. In this respect, the Committee recalls that “the authorities should resort to calling in the police in a strike situation only if there is a genuine threat to public order. The intervention of the police should be in proportion to the threat to public order and governments should take measures to ensure that the competent authorities receive adequate instructions so as to avoid the danger of excessive violence in trying to control demonstrations that might undermine public order” [see Digest, op. cit., para. 647]. In light of this, the Committee requests the Government to ensure the respect of this principle.
5. 376. More generally, noting that the social partners are collecting information and documents regarding these issues in view of mediation, the Committee stresses the importance of making the issues set out in the complaint the subject of negotiations between the parties and invites the Government to continue taking measures in this respect.

The Committee’s recommendations

1. 377. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to ensure the respect of the principles regarding the staging of strike pickets referred to in the conclusions and to communicate them to the parties concerned in the dispute and to the Judiciary.
   • (b) More generally, noting that the social partners are gathering information and documents on the issues in this case, the Committee stresses the importance of making the issues set out in the complaint the subject of negotiations between the parties and invites the Government to continue taking measures in this respect.