Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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

Adoption of Act No. 13.467. The Committee notes the joint observations of the International Trade Union Confederation (ITUC) and the Single Confederation of Workers (CUT), received on 1 September 2017, and the observations of the National Confederation of Typical State Carriers (CONACATE), received on 28 August 2017. The Committee notes that the two communications refer to the adoption, on 13 July 2017, of Act No. 13.467 to reform the Consolidation of Labour Laws (CLT) and the impact of the new Act on compliance with the Convention. The Committee notes that, in their observations, the trade unions referred to above state that: (i) new section 611 A of the CLT, which introduces into Brazilian law the general possibility, by means of collective bargaining, of derogations which reduce the rights and protection afforded by the labour legislation for workers is in violation of the provisions and purposes of the present Convention and of the Collective Bargaining Convention, 1981 (No. 154); (ii) subsection 2 of new section 611-A, by providing that the absence of compensatory measures is not a reason for the clauses of collective agreements and accords to be found void, even where they derogate from the rights set out in the law, shows that the new system established by Act No. 13.467 is not based on negotiation, but on the abdication of rights; (iii) new section 444 of the CLT is also in violation of the ILO Conventions referred to above as it permits individual derogations from the provisions of the law and of collective agreements for workers with a higher education diploma and who receive a salary at least two times higher than the ceiling for benefits from the general social security scheme; and (iv) the creation by new section 444-B of the CLT of the status of exclusive autonomous worker, allowing the status of dependent worker to be excluded even when the autonomous worker is engaged exclusively and permanently for an enterprise, denies this new category of worker the rights of freedom of association and collective bargaining recognized by the labour legislation. Finally, the trade unions emphasize that the legislative amendments introduced are unprecedented in their gravity and are contrary to the comments made by the Committee in its 2016 observation.

The Committee also notes the joint observations of the International Organisation of Employers (IOE) and the National Confederation of Industry (CNI), received on 1 September 2017, which also refer to the adoption of Act No. 13.467, in relation to which they indicate that: (i) the Act was preceded by a broad process of discussion, and the principal social partners in the country had the opportunity to be heard by Parliament; (ii) the Act is intended to strengthen collective bargaining and the application of Conventions Nos 98 and 154 by promoting free and voluntary collective bargaining and establishing greater legal security, by limiting the interventions of labour courts in relation to the matters agreed by the social partners; and (iii) it is not correct to state that the new Act strengthens collective bargaining to the detriment of workers’ protection, as new section 611-A of the CLT provides that the content of collective agreements and accords must respect the over 30 labour rights recognized in the Brazilian Constitution.

Article 4 of the Convention. Promotion of collective bargaining. Relationship between collective bargaining and the law. The Committee notes that Act No. 13.467, adopted on 13 July 2017, revises many aspects of the CLT. The Committee also notes Provisional Measure No. 808 of the President of the Republic, of 14 November 2017, which provisionally amends certain aspects of Act No. 13.467. The Committee notes that, as indicated in the observations of the various social partners, under the terms of the new Act: (i) collective agreements and accords prevail over the provisions of the law in respect, among others, of a list of 14 subjects (section 611-A of the CLT); and (ii) in contrast, collective agreements and accords cannot suspend or reduce rights in relation to a closed list of 30 points (section 611-B of the CLT). The Committee notes that this closed list of 30 points is based on the labour provisions contained in the Brazilian Constitution. It also notes that the list of subjects in respect of which collective bargaining prevails over the law includes many aspects of the employment relationship and that this list, in contrast with the list set out in section 611-B, is merely illustrative, inter alia, and that derogations by collective bargaining are therefore possible from all legal provisions, with the sole exception of the labour rights set out in the Constitution.

The Committee recalls that it emphasized in its previous comments, with reference to various bills that had been submitted to the Congress in 2015 and April 2016 that, although isolated legislative provisions concerning specific aspects of working conditions could, in limited circumstances and for specific reasons, provide that they may be set aside through collective bargaining, a provision establishing that provisions of the labour legislation in general may be replaced through collective bargaining would be contrary to the objective of promoting free and voluntary collective bargaining, as set out in the Convention. The Committee requested the Government to take fully into account the scope and content of Article 4 of the Convention in this regard. The Committee notes with concern that new section 611-A of the CLT establishes as a general principle that collective agreements and accords prevail over the legislation, and it is therefore possible through collective bargaining not to give effect to the protective provisions of the legislation, with the sole limit of the constitutional rights referred to in section 611 B of the CLT. The Committee once again recalls in this regard that the general objective of Conventions Nos 98 and 154 and the Labour Relations (Public Service) Convention, 1978 (No. 151), is to promote collective bargaining with a view to agreeing on terms and conditions of employment that are more favourable than those already established by law (see the 2013 General Survey on collective bargaining in the public service, paragraph 298) and that the definition of collective bargaining as a process intended to improve the protection of workers provided for by law is recognized in the preparatory work for Convention No. 154, an instrument which has the objective, as set out in its preambular paragraphs, of contributing to the achievement of the objectives of Convention No. 98. In light of the above, while asking the Government to provide its comments on the observations of the social partners in relation to sections 611-A and 611-B of the CLT, the Committee requests the Government to examine, following consultation with the social partners, the revision of these provisions in order to bring them into conformity with Article 4 of the Convention.

Relationship between collective bargaining and individual contracts of employment. The Committee notes that, under the terms of new section 442 of the CLT, workers who have a higher education diploma and receive a wage that is at least two times higher than the ceiling for benefits from the general social security scheme (currently around 11,000 Brazilian reals (BRL), or approximately US$3,390) will be able to derogate from the provisions of the legislation and collective agreements and accords in their individual contracts of employment. The Committee recalls that legislative provisions which allow individual contracts of employment to contain clauses contrary to those contained in the applicable collective agreements (although it is always possible for individual contracts of employment to contain clauses that are more favourable to the workers) are contrary to the obligation to promote collective bargaining, as set out in Article 4 of the Convention. While requesting the Government to provide its comments on the observations of the social partners in relation to section 442 of the CLT, the Committee requests the Government to examine, after consulting the social partners, the revision of this provision so as to bring it into compliance with Article 4 of the Convention.

Scope of application of the Convention. The Committee notes the allegations made in the observations of the trade unions that the extension of the definition of autonomous worker, as a result of new section 444-B of the CLT, will have the effect of excluding workers covered by that definition from the trade union rights recognized in both the legislation and the Convention. Recalling that the Convention applies to all workers, with the sole possible exception of the police and the armed forces (Article 5) and public servants engaged in the administration of the State (Article 6), the Committee requests the Government to provide its comments on the observations of the trade unions in relation to the impact of section 444-B of the CLT. The Committee also requests the Government to provide information on the other aspects of Act No. 13.467 relating to the rights enshrined in the Convention.

The Committee invites the Government to provide in its next report a detailed reply to the present comments, as well as to the other points contained in the 2016 observation in relation to the Convention.

[The Government is asked to reply in full to the present comments in 2018.]