Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Forced Labour Convention, 1930 (No. 29) - Brazil (Ratification: 1957)

The Committee notes the observations of the National Association of Labour Court Judges (ANAMATRA), received on 16 November 2015. The Committee requests the Government to provide its comments in this regard.

Articles 1(1), 2(1) and 25 of the Convention. “Slave labour”. The Committee previously referred to the results achieved in combating slave labour, which has been a scourge in Brazil for many years, through the activities undertaken by specialist institutions such as the National Commission for the Eradication of Slave Labour (CONATRAE) and the Special Mobile Inspection Group (GEFM). It also noted the role of labour courts, which have convicted the perpetrators of this kind of exploitation and imposed fines and the payment of substantial compensation. The Committee encouraged the Government to maintain its efforts by continuing to take steps to strengthen the legal and institutional framework to combat slave labour.

(a) Strengthening of the legal framework. (i) Constitutional amendment. Referring to its previous comments, the Committee notes with interest the promulgation in June 2014 of Constitutional Amendment No. 81/2014, adopting a new wording for article 243 of the Constitution, providing for the expropriation of rural or urban property in which the use of slave labour has been identified and the consignment of this property to the agrarian reform and social housing programmes. The expropriation occurs without compensation of the owners and without prejudice to the application of other penalties established by law. The Committee considers that the adoption of this amendment to the Constitution, which has been under discussion in Parliament for many years, constitutes an important tool for combating forced labour inasmuch as it contributes to undermining the economic interests of those who exploit slave labour and helps to combat impunity. The Committee requests the Government to provide information on the expropriation rulings that have been handed down and on the steps taken to ensure that they are enforced. Please also to indicate whether the funds resulting from the expropriation of properties directly benefit the workers who have been victims of forced labour, thereby helping to prevent them becoming victims again.

(ii) Amendment of section 149 of the Penal Code, under which “reducing a person to a condition akin to slavery” is a criminal offence. The Committee notes that, in the context of the discussion culminating in the adoption of the above constitutional amendment, the question of the criminalization of “slave labour”, as established by section 149 of the Penal Code, was the subject of discussion. The Government explains in its report that the full application of the new provision in the Constitution depends on the regulation in law of what the legislature understands by “exploitation of slave labour” for the purposes of expropriation.

The Committee recalls that it noted with interest that the purpose of the amendments made in 2003 to the wording of section 149 of the Penal Code was to adapt the legislation to national circumstances through the adoption of provisions describing in detail the various elements that constitute the crime of “reducing a person to a condition akin to slavery”. The Committee notes that a number of bills designed to amend section 149 of the Penal Code are under discussion in both the Chamber of Deputies and the Senate. The Committee therefore hopes that the Government will not fail to take the necessary steps to ensure that any new wording of section 149 of the Penal Code does not constitute an obstacle in practice to the action taken by the competent authorities to identify and protect victims of all situations of forced labour and to penalize the perpetrators of this crime in a prompt and adequate manner. The Committee strongly encourages the Government to consult the authorities which in recent years have been most heavily involved in combating “slave labour”, particularly the labour inspectorate, the Labour Prosecution Service, the labour courts and the Federal Prosecution Service.

(iii) Register of employers. With regard to the list of individuals or entities found responsible, by a definitive administrative decision, for using labour under conditions akin to slavery (known as the “dirty list”), the Committee notes that, by a decision of 23 December 2014, the Federal High Court ordered, as a precautionary measure, the suspension of the publication of this list by the Ministry of Labour and Employment. This decision is a result of court action brought by an association of real estate companies claiming that the list was unconstitutional on the grounds, inter alia, that the existence and functioning of the list should be regulated by legislation, not by ministerial order. The Committee notes that, further to this precautionary measure, the Ministry of Labour and Employment adopted a new ministerial order (MTE/SEDH 2/2015) describing in detail the process whereby private entities are placed on or removed from the list, and also the manner in which the rights of defence and the principle of the right to be heard are ensured during the proceedings. Further to this order, the Federal Prosecution Service submitted an application to the Federal High Court to review its decision to suspend the list.

The Committee recalls that since 2004 this list had been updated regularly and published by the Ministry of Labour and Employment, and that the persons on the list were ineligible to receive any assistance, subsidies or public credit. The Committee also emphasizes that this list plays a fundamental role since it constitutes an information tool for society as a whole, but also for enterprises, which are thus better placed to monitor and supervise their supply chains. The Committee therefore strongly encourages the Government to continue taking all necessary measures to ensure that the list of individuals or entities found responsible for using labour under conditions akin to slavery is published regularly and in a transparent manner.

(b) Strengthening of the labour inspectorate. The Committee notes that the GEFM has released nearly 50,000 workers from situations of slave labour since its first inspections in May 1995. In 2014, a total of 170 inspections were conducted in 284 workplaces, enabling the release of 1,674 workers. The Government indicates that 2013 was the first year when the number of workers identified in situations of slave labour in urban areas exceeded the number identified in rural areas. In 2014, civil construction topped the list of sectors where the labour inspectorate had identified the largest number of workers in situations of slave labour, followed by agriculture and livestock farming. In recent years, the states with the highest incidence of slave labour include Minas Gerais, Espírito Santo and São Paulo. The Committee recalls that the GEFM has demonstrated, as a result of its inter institutional composition (labour inspectors and representatives of the Labour Prosecution Service, Federal Police and Federal Prosecution Service), that it is a vital link in the fight against slave labour, since its inspections enable it not only to release workers from situations of forced labour and secure compensation for them, but also to provide evidence for the civil and criminal prosecution of the perpetrators. The Committee notes that, according to the information supplied by the Government, the GEFM currently has only four teams responsible for the issue of slave labour, compared with eight in 2009 and five in 2010. The Committee trusts that the Government will not fail to take all the necessary steps to provide the GEFM with sufficient human and financial resources to be able to fulfil its mission throughout the country, especially as it currently comprises only four teams to intervene in all sectors affected by the scourge of forced labour.

(c) Imposition of effective penalties. (i) Penalties imposed by the labour inspectorate and labour courts. In its previous comments, the Committee asked the Government to continue to support the action of the labour authorities in the suppression of slave labour (labour inspectorate, Labour Prosecution Service and labour courts). The Government recalls in its report the important role of the Labour Prosecution Service which, through public civil action, enables heavy fines to be imposed for violations of the labour legislation and, through collective public action, compensation to be awarded for the damage suffered by workers and also for the collective damage suffered by society. It confirms that, because substantial compensation has been awarded, as a result of these proceedings, it has proved to be an effective deterrent by making the exploitation of slave labour economically disadvantageous. However, the Committee observes that the Government does not provide any specific information on these judicial proceedings or the results thereof. The Committee therefore requests the Government once again to provide information on the steps taken to strengthen the means of action of the labour prosecution authorities and labour courts, on fines imposed and compensation awarded, and on the measures taken to ensure the payment in practice of these fines and compensation.

(ii) Criminal penalties. The Committee notes the Government’s acknowledgement that impunity remains a major challenge and that the action of the Federal Prosecution Service and Federal Judiciary is crucial in this respect. However, the Committee notes with regret that the Government has not sent any specific information on the rulings handed down by the Federal Judiciary, which has sole competence with regard to section 149 of the Penal Code. However, the Committee notes that, according to information on the website of the Prosecutor General, the Strategic Plan for the Federal Judiciary 2015–20, adopted in October 2014, includes among its priorities the judgment of criminal cases involving crimes connected with trafficking in persons and reducing a person to a condition akin to slavery, with the aim of issuing judgments by the end of 2015 on court cases transmitted to the Federal Judiciary up to 31 December 2012. The Committee observes an increase in the number of judicial proceedings based on section 149 of the Penal Code, rising from 83 in 2010 to 677 in 2013, with criminal cases increasing from 63 in 2010 to 152 in 2013. The Committee also observes that in 2012 a working group on modern slavery was established within the Federal Prosecution Service to discuss, inter alia, improved guidelines for criminal investigations with a view to improving the collection of evidence to initiate prosecutions and, where appropriate, bring the perpetrators to trial. The Committee recalls that, according to Article 25 of the Convention, penalties must be really adequate and strictly enforced with regard to individuals responsible for exacting forced labour. It underlines the importance of these criminal penalties, which act as a deterrent and, together with financial penalties, constitute a key element in combating the perpetuation of forced labour. The Committee therefore requests the Government to supply information on the steps taken to ensure that individuals suspected of exacting forced labour are in practice put on trial and, if found guilty, that penal sanctions commensurate with the crime committed are imposed on them.

(d) Identification, protection and reintegration of victims. The Committee notes the Government’s indication that it continues to provide emergency aid and medium-term assistance for victims of forced labour in order to facilitate their reintegration (unemployment benefits corresponding to three minimum wage equivalents and priority access to the federal programme for income redistribution (Bolsa Família). The Government also refers to the recruitment of workers in the rural sector, emphasizing that the public employment system can play a part in the prevention of forced labour by eliminating the role played by middlemen (gatos), and ensuring that workers are more clearly informed of their rights. Lastly, the Committee observes that in August 2015 a technical cooperation agreement was signed between various public entities (Ministry of Labour and Employment, labour inspectorate, judiciary, public prosecution service), whereby the latter undertake to establish a network for the protection of released workers with a view to their inclusion in the formal labour market by seeking public–private partnerships. The Committee requests the Government to continue providing information on the measures taken to reintegrate victims of forced labour and on the results achieved. Please also provide information on the action taken to make workers in the regions worst affected by forced labour more aware of the risks involved.

Finally, the Committee recalls, in light of the above information, that action to combat forced labour, because of its complexity, necessitates coordinated and concerted action by numerous public authorities and also the involvement of civil society as a whole. The Committee therefore requests the Government to supply information on the coordination activities of the National Commission for the Eradication of Slave Labour (CONATRAE) and on the manner in which it evaluated the implementation of the actions provided for in the National Plan for the Eradication of Slave Labour.

The Committee is raising other matters in a request addressed directly to the Government.