Informe definitivo - Informe núm. 364, Junio 2012

Caso núm. 2739 (Brasil) - Fecha de presentación de la queja:: 02-NOV-09 - Cerrado

Allegations: The complainant organizations object to the measures adopted by the Public Labour Prosecutor’s Office (MPT) and to the decisions handed down by the judiciary revoking clauses in collective agreements concerning the payment of assistance contributions by all workers, including non-unionized workers, who benefit from a collective agreement; they also allege that the Office of the Public Prosecutor of São Paulo has initiated legal proceedings to prevent trade unions from engaging in protest action

1. 318. The Committee last examined this case at its November 2011 meeting and on that occasion presented an interim report to the Governing Body [see 362nd Report, paras 309–315].
2. 319. The Government sent its observations in communications of 15 and 16 February 2012.
3. 320. 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. Previous examination of the case

1. 321. The Committee recalls that, at its November 2011 meeting, it made the following recommendations [see 362nd Report, para. 315]:
   • (a) The Committee once again requests the Government to keep it informed of the outcome of the meetings between the National Coordinating Body for the Promotion of Freedom of Association (CONALIS) of the MPT and the representatives of the union confederations to discuss various issues such as those arising from the assistance contribution, and requests the Government to keep it informed with regard to the initiative to establish a tripartite Council of Industrial Relations. The Committee reminds the Government that it may call upon ILO assistance in seeking solutions that are satisfactory to all the parties concerned and are in conformity with the principles of freedom of association.
   • (b) The Committee once again requests the Government to send its observations without delay on the allegation that the Office of the Public Prosecutor of São Paulo has initiated legal proceedings to prevent trade unions from holding strikes and engaging in protest action and, since it is a matter of concern to the country’s trade union confederations, to initiate a dialogue with the most representative employers’ and workers’ organizations on the issue. The Committee also urges the complainant organization to provide additional information and examples with regard to its allegations.
   • (c) The Committee invites the Government to consider taking the necessary measures for the ratification of Convention No. 87.

B. The Government’s reply

1. 322. In its communication dated 16 February 2012, the Government sent a communication from the Public Labour Prosecutor’s Office (MPT) relating to this case. The MPT states that the National Coordinating Body for the Promotion of Freedom of Association (CONALIS) of the MPT was established in 2009 and since then has been operating as a channel of communication with trade unions and employers’ representatives. There is a CONALIS representative in all of the MPT’s units. The aim of CONALIS is to strengthen trade unions and create an environment that is conducive to the exercise of freedom of association.
2. 323. The MPT reports that CONALIS held numerous meetings with the trade unions to discuss various issues, such as the collection from both unionized and non-unionized workers of the contributions provided for in collective agreements and accords. The trade unions do not agree with the measures taken by the prosecutors aimed at declaring null and void such clauses of collective agreements. Section 83(IV) of Supplementary Act No. 75 of 20 May 1993 provides that the MPT is authorized to propose through amparo proceedings (proceedings for the protection of constitutional rights) any measures that may be required to declare null and void a clause in a collective agreement, accord or contract that violates individual or collective freedoms or the inalienable individual rights of workers. The MPT states that the Federal Supreme Court explicitly confirmed the constitutionality of this provision. The question of the payment of assistance contributions by non-unionized workers is disputed by the MPT. The jurisprudence of the Federal Supreme Court and of the Higher Labour Court does not allow for the collection of such contributions.
3. 324. According to the MPT, it is worth noting that article 8 of the Constitution of Brazil guarantees not only “positive” freedom of association, but also “negative” freedom of association, by providing that no individual shall be obliged to join or remain a member of a union. Moreover, the jurisprudence of the Federal Supreme Court provides that the contribution to trade union confederations referred to in article 8 of the Constitution is applicable only to members of the respective trade union. The Higher Labour Court established that the Constitution, in its articles 5(XX) and 8(V), guarantees the right to freedom of association and the right to join trade unions. Any clause of an accord, collective agreement or standard which requires non-unionized workers to pay a confederation tax, assistance contribution, promotional contribution or suchlike to a trade union organization shall be deemed to be in contravention of such freedom or right. Any provision that does not conform to this limitation shall be declared null and void, and any sums irregularly withheld shall be returned to the workers concerned.
4. 325. The MPT adds that, at a meeting on 5 May 2010, after several meetings with representatives of the trade union organizations and despite the jurisprudence in support of the MPT’s measures against the collection of assistance contributions from non-unionized workers, CONALIS discussed the issue and approved Guidance No. 3, which provides that negotiated assistance contributions may be collected from all workers – both unionized and non-unionized – provided that such payments are approved at a general assembly that is convened for that purpose, that is widely publicized, at which the participation of both members and non-members is guaranteed, and that is held in a place and at a time that facilitates the attendance of workers, providing that the right to object is guaranteed, and that such objection may be indicated to the union by any means of communication, and that the principles of proportionality and rationality have been observed, including with regard to the time limit set for objections concerning the amount of the contribution.
5. 326. According to the MPT, the adoption of the guidance reflected the wishes of the trade union movement and took into account the need for a compromise between the institutions concerned, despite the total lack of support in the jurisprudence mentioned above. This decision was considered satisfactory by the unions, and it seemed that this would relieve the tension caused by the measures taken by the MPT in line with the jurisprudence in question. It was hoped that the MPT’s guidance would give rise to new debate in the labour courts with a view to reviewing the jurisprudence on the collection of assistance contributions from non-unionized workers.
6. 327. The MPT reports that a feeling of resistance started to develop among the prosecutors towards the position adopted and harsh criticism was directed towards the guidance that had been approved. The criticism related to: (a) the abusive collection of the contribution from non-unionized workers, who were not effectively guaranteed the right to object; (b) the fact that workers were required to pay a compulsory contribution, regardless of their union membership; (c) the absence of any accountability by the unions, despite the public nature of the contribution; (d) the fact that the MPT’s measures to prevent abuse were undermined; and (e) the absence of any moves by the labour courts to change the law. Furthermore, the trade union movement began to use Guidance No. 3 to argue against the action of prosecutors, which generated even greater tension. This created a need for it to be reviewed, and on 16 August 2011, after extensive debate and consultation, the majority of the prosecutors decided to withdraw Guidance No. 3. Despite all the efforts made by CONALIS to find a compromise position in order to relieve the tension with the union movement in this regard, the outcome was not as expected.
7. 328. The MPT reports that a number of observations can be made with regard to the events that have taken place: (1) the dialogue between the MPT and the trade union movement should be ongoing; (2) the trade union movement has already been warned about and informed of the difficulties of adopting a position with regard to assistance contributions without there being changes to legislation and jurisprudence; (3) within the context of this dialogue, it was noted that, without modifying Brazil’s trade union system, it will be difficult to accept the collection of assistance contributions from workers who are not members of trade unions, without the specific permission of those workers; and (4) the modification of Brazil’s trade union system would involve the ratification of Convention No. 87, the adoption of legislation establishing criteria for union representation providing benefits to the most representative organizations, and the provision of a private trade union financing mechanism, which would allow non-unionized workers to contribute voluntarily in order to benefit from trade union action and the working conditions established through collective bargaining.
8. 329. The MPT adds that, in addition to the discussions on strengthening the union movement, the “200 Programme” was created, which provides for the adoption of measures to ensure the representation of workers in enterprises with more than 200 employees, as provided for in article 11 of the Constitution. To date, very few enterprises guarantee the representation of workers and the trade union movement has not been making much effort to give effect to this constitutional provision, which is a fundamental right of all urban and rural workers. It is hoped that the implementation of this programme will help increase union representation and improve the system until structural reforms are adopted. The representation of workers involves providing an important safeguard to prevent, among other things, anti-union practices, moral and sexual harassment and discrimination. Finally, the MPT reaffirms that it remains willing to keep the channel of communication between CONALIS and the trade union movement always open, so that they can work together to secure better working conditions and prevent abuse and actions that violate the rights enshrined in Brazil’s legal system, especially in the Constitution and the ILO Conventions.

C. The Committee’s conclusions

1. 330. The Committee recalls that, when it last examined this case at its November 2011 meeting, it requested the Government to keep it informed of the outcome of the meetings between CONALIS of the MPT and the representatives of the union confederations to discuss various issues such as those arising from the assistance contribution, and requested the Government to keep it informed with regard to the initiative to establish a tripartite Council of Industrial Relations.
2. 331. The Committee notes that the Government sent a communication from the MPT on this issue, reporting that: (1) CONALIS held numerous meetings with the trade union organizations to discuss various issues, such as the collection from both unionized and non-unionized workers of the contributions provided for in collective agreements and accords; (2) section 83(IV) of Supplementary Act No. 75 of 20 May 1993 provides that the MPT is authorized to propose through amparo proceedings any measures that may be required to declare null and void a clause in a collective contract or agreement that violates individual or collective freedoms or the inalienable individual rights of workers; (3) the Federal Supreme Court explicitly confirmed the constitutionality of the provision in question and the jurisprudence of the Federal Supreme Court and of the Higher Labour Court does not allow for the collection of such contributions; (4) article 8 of the Constitution of Brazil guarantees not only “positive” freedom of association, but also “negative” freedom of association, by providing that no individual shall be obliged to join or remain a member of a union; (5) CONALIS discussed the issue and approved Guidance No. 3, which provides that negotiated assistance contributions may be collected from all workers – both unionized and non-unionized – provided that such payments are approved at a general assembly that is convened for that purpose, that is widely publicized, at which the participation of both members and non-members is guaranteed, and that is held in a place and at a time that facilitates the attendance of workers, providing that the right to object is guaranteed, and that such objection may be indicated to the union by any means of communication, and that the principles of proportionality and rationality have been observed, including with regard to the time limit set for objections concerning the amount of the contribution; (6) Guidance No. 3 received strong criticism in the MPT and on 16 August 2011, after extensive debate and consultation with the majority of the prosecutors, a decision was made to withdraw it; (7) the dialogue between the MPT and the trade union movement should be ongoing and the trade union movement has already been warned about and informed of the difficulties of adopting a position with regard to assistance contributions without there being changes to the relevant legislation and jurisprudence; (8) within the context of this dialogue, it was noted that, without modifying Brazil’s trade union system, it will be difficult to accept the collection of assistance contributions from workers who are not members of trade unions, without the specific permission of those workers; and (9) the modification of Brazil’s trade union system would involve the ratification of Convention No. 87, the adoption of legislation establishing criteria for union representation providing benefits to the most representative organizations, and the provision of a private trade union financing mechanism, which would allow non-unionized workers to contribute voluntarily in order to benefit from trade union action and the working conditions established through collective bargaining.
3. 332. First of all, the Committee takes note with interest of the initiatives taken by CONALIS of the MPT to promote and maintain a dialogue with the trade union movement on the issue of the collection of assistance contributions from non-unionized workers who benefit from a collective agreement. Taking into account that, as indicated by the MPT, the legislative provisions on that issue and the jurisprudence of the Federal Supreme Court and the Higher Labour Court that do not allow for the collection of such contributions are a source of tension in the trade union movement, the Committee trusts that the dialogue initiated by CONALIS with the trade union movement will continue and that, in that context, consideration will be given to the comments made by the Committee when it examined this case at its November 2010 meeting [see 358th Report, paras 316 and 317]. More specifically, the Committee recalls that it has on many occasions ruled on union security clauses, including those which provide for the payment of contributions by non-unionized workers as an expression of solidarity with unions that conclude a collective agreement. In dealing with this issue, the Committee has referred to the discussions that took place at the International Labour Conference when it adopted the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). On that occasion, the Committee on Industrial Relations of the International Labour Conference, taking into consideration the debate which it had held on the issue of union security clauses, finally agreed to recognize that the Convention should not be interpreted as authorizing or prohibiting union security arrangements, such matters being matters for regulation in accordance with national practice [see 281st Report of the Committee, Case No. 1579 (Peru), para. 64, quoting ILO, Record of Proceedings, ILC, 32nd Session, 1949, p. 468]. In the light of that decision, the Committee considers that problems arising out of union security clauses must be resolved at the national level, according to the practice and labour relations system of each country. In other words, both situations where union security clauses are authorized and those where these are prohibited can be considered to be in conformity with ILO principles and standards on freedom of association [see 284th Report, Case No. 1611 (the Bolivarian Republic of Venezuela), paras 337–339]. With regard to the question of salary deductions agreed to in a collective agreement that is applicable to non-unionized workers who benefit from a union’s activities, the Committee recalls that it has stated in the past that, when legislation admits trade union security clauses, such as the withholding of trade union dues from the wages of non-members benefiting from the conclusion of a collective agreement, those clauses should only take effect through collective agreements [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 480]. The Committee reminds the Government once again that it may call upon ILO assistance in seeking solutions that are satisfactory to all the parties concerned and are in conformity with the principles of freedom of association.
4. 333. The Committee recalls that, when it examined this case at its November 2001 meeting, it requested the Government to send its observations without delay on the allegation that the Office of the Public Prosecutor of São Paulo has initiated legal proceedings to prevent trade unions from holding strikes and engaging in protest action and urged it to initiate a dialogue with the most representative employers’ and workers’ organizations on the issue. The Committee also requested the complainant organizations to provide additional information and examples with regard to its allegations. The Committee regrets that neither the Government nor the complainant organizations have sent observations in this regard and under these circumstances will not pursue the examination of this allegation.

The Committee’s recommendations

1. 334. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee trusts that the dialogue initiated by CONALIS of the MPT with the trade union movement in relation to the issue of collecting assistance contributions from non unionized members who benefit from a collective agreement will continue and that the Committee’s principles on the issue will be taken into account in this regard. The Committee reminds the Government once again that it may call upon ILO assistance in seeking solutions that are satisfactory to all the parties concerned and are in conformity with the principles of freedom of association.
   • (b) The Committee once again invites the Government to consider taking the necessary measures for the ratification of Convention No. 87.