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

Other comments on C098

Observation

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The Committee notes the observations of the National Confederation of Industry (CNI), received on 31 August 2023 and also forwarded by the Government with its report. It also notes the observations of the Single Confederation of Workers (CUT), transmitted by the Government in its report. The Committee notes that these observations and the corresponding replies by the Government concern matters examined in the present comment.

With reference to the 2022 allegations by the CUT in relation to Act No. 14.437/2022 on the implementation by the executive authorities of alternative labour measures and an emergency programme for employment and income maintenance with a view to responding to the social and economic consequences of a state of public calamity, the Committee notes the Government’s reply and refers to its 2020 comments on Act No. 14.020 in view of the similarity in content of the two instruments. The Committee observed on that occasion that the Act was not intended to set aside collective agreements and accords that are in force, but to establish a temporary system for reduced activity and income compensation that can be set in motion by individual agreement or collective accord. The Committee therefore emphasized the importance of promoting the full utilization of collective bargaining machinery as a means of achieving balanced and sustainable solutions in a time of crisis.

Application of the Convention and respect for civil liberties. In its previous comments, the Committee noted with deep concern the allegations of the International Trade Union Confederation (ITUC) concerning the murders of three trade union leaders and members in 2020 as well as several cases of death threats against other union leaders.

The Committee notes that the Government confines itself to indicating that: (i) there is no legal provision conferring upon the Ministry of Labour powers in criminal matters to undertake investigations or punish the instigators of violations against trade union leaders; and (ii) it is necessary to ascertain the progress made by the criminal justice or administrative procedures in that regard. The Committee also notes the observations of the CUT in which it deplores the Government’s reply and calls on it to provide full information on the murders in question.

The Committee notes with regret the absence of information from the Government on the progress made in the investigations of the crimes alleged by the ITUC and the protection measures adopted for trade union leaders who have received death threats. Emphasizing that compliance with ratified Conventions is incumbent on all the competent authorities, the Committee is bound to recall that the rights set out in the Convention, and particularly those respecting free and voluntary collective bargaining, can only be exercised in a climate free from violence and threats. The Committee once again urges the Government to ensure that the necessary measures are taken to: (i) identify and punish the perpetrators and instigators of the alleged crimes; and (ii) ensure effective protection for the trade union leaders whose physical safety is under threat. The Committee urges the Government to provide detailed information on this subject without delay.

Article 1 of the Convention. Adequate protection against anti-union discrimination. The Committee recalls that, while noting the existence of constitutional and legislative provisions that provide general protection for trade union activities, it has been requesting the Government for many years to take measures to set out explicitly in the legislation specific sanctions that are sufficiently dissuasive against all acts of anti-union discrimination. Noting the absence of new information on this subject and recalling the essential importance of ensuring effective protection against anti-union discrimination, the Committee is therefore bound to reiterate its request and hopes that the Government will be in a position to report tangible progress in this regard.

Article 4. Promotion of collective bargaining.Relationship between collective bargaining and the law. In its previous comments, the Committee requested the Government, in consultation with the representative social partners, to take the necessary measures to amend sections 611-A and 611-B of the Consolidation of Labour Laws (CLT) so as to specify more precisely the situations in which clauses derogating from the legislation may be negotiated, as well as the scope of such clauses. In this regard, the Committee took note of the concerns expressed in 2021 by the ITUC, the CUT and the National Confederation of Workers in Teaching Establishments (CONTEE) with regard to the implementation of these provisions in the context of the economic crisis provoked by the COVID-19 pandemic which could in their view result in workers being obliged to accept, through collective bargaining, a sharp deterioration in their conditions of work and employment.

The Committee notes that the Government reaffirms that: (i) the primacy of collective bargaining over the legislation introduced by Act No. 13.467 of 2017 contributes to reinforcing confidence in bargaining mechanisms in accordance with the Convention and the Federal Constitution of 1988; (ii) by guaranteeing that the rights of workers set out in the Constitution (section 611-B of the CLT) cannot be derogated through collective bargaining, the legislator sought to clarify the scope of collective bargaining while conserving the fundamental rights of workers with constitutional standing; and (iii) the Supreme Federal Court confirmed in a ruling of June 2022 the validity, irrespective of the specific compensatory benefits outlined, of collective agreements which limit or restrict certain labour rights where they are not guaranteed by the Constitution.

The Committee also notes the information provided by the Government on the number of collective agreements and accords concluded in the country, according to which: (i) between January 2019 and June 2023, there were 181,838 registered collective instruments, of which 149,096 were collective labour accords (concluded at the level of one or several enterprises) and 32,742 were collective labour agreements (concluded at a broader level, such as a sector of activity or an occupation); (ii) in 2022, some 41,742 collective accords and agreements were concluded, in comparison with the 47,672 concluded in 2017. Finally, the Government reports the adoption of Decree No. 11.477 of 6 April 2023 creating an inter-ministerial working group responsible for preparing a proposal for the restructuring of industrial relations and the promotion of collective bargaining.

The Committee notes that the observations of the CNI confirm the information provided by the Government, with the employers’ organization adding that since the entry into force of the reform, the number of court actions challenging the validity of the clauses of collective agreements has fallen by 80 per cent. The Committee notes the affirmation by the CUT that according to the analysis of the Inter-union Department for Statistics and Socio-economic Analyses: (i) collective bargaining has become more difficult since the entry into force of the 2017 reform, resulting in a decrease in the number of collective labour agreements and accords and greater discretionary power for enterprises; (ii) it is undeniable that the changes introduced by the labour reform, and particularly those set out in section 611-A of the CLT, are in violation of ILO Conventions Nos 98 and 154; and (iii) nothing has been done by the Government to give effect to the Committee of Experts’ comments in this regard, while the commission established in 2023 to restructure industrial relations and promote collective bargaining has not currently included in its work plan action to follow up the Committee of Experts’ comments.

The Committee notes the different information provided by the national tripartite constituents and notes the statistical indications that the total number of collective instruments concluded has fallen by 12.5 per cent since 2017 (the number of collective agreements concluded is stable, while the number of collective accords concluded at the enterprise level has fallen by 17.6 per cent). The Committee also notes the lack of action taken by the Government for the amendment of sections 611-A and 611-B of the CLT. The Committee recalls that it has considered that, while targeted legislative provisions covering specific aspects of conditions of work and providing, in a circumscribed and reasoned manner, for the possibility of their replacement by means of collective bargaining may be compatible with the Convention, a legal provision providing for a general possibility to derogate from the protective provisions of labour legislation by means of collective bargaining would be contrary to the purpose of promoting free and voluntary collective bargaining established in Article 4 of the Convention. While noting the limits already set out in section 611-B of the CLT, the Committee once again requests the Government, in consultation with the representative social partners, to take the necessary measures to amend sections 611-A and 611-B of the CLT so as to specify more precisely the situations in which clauses derogating from the legislation may be negotiated, as well as the scope of such clauses. The Committee requests the Government to provide information on the progress made in this regard. The Committee also requests the Government to continue providing information on developments in the number of collective agreements and accords concluded in the country, including data on the agreements and accords which contain clauses derogating from the legislation, with an indication of the nature and scope of such derogations.

Relationship between collective bargaining and individual contracts of employment. The Committee recalls that, by virtue of Act No. 13.467 of 2017, section 444 of the CLT has the effect that, in the domain covered by section 611-A of the CLT, the clauses of individual contracts of employment of employees who have a higher education diploma and who receive a salary that is at two times higher than the ceiling for benefits under the general social security scheme prevail over the content of collective agreements and accords, including where the clauses of individual employment contracts are less protective. The Committee recalls in this regard that: (i) the present Convention is fully applicable to the workers covered by section 444 of the CLT insofar as, under the terms of Articles 5 and 6, only members of the armed forces and the police (Article 5) and public servants engaged in the administration of the State (Article 6) may be excluded from its scope of application; and (ii) as explicitly set out in Paragraph 3 of the Collective Agreements Recommendation, 1951 (No. 91), the obligation to promote collective bargaining set out in Article 4 of the Convention requires that the individual negotiation of the terms of the contract of employment cannot derogate from the rights and guarantees provided in the applicable collective agreements, on the understanding that contracts of employment can always set out more favourable terms and conditions of work and employment. Noting the absence of information in this regard, the Committee once again requests the Government, after consultation with the representative social partners concerned, to take the necessary measures to ensure the conformity of section 444 of the CLT with the Convention. The Committee requests the Government to provide information on any progress achieved in this respect.

Scope of application of the Convention. Autonomous and self-employed workers. The Committee recalls that, following the extension of the definition of self-employed workers resulting from new section 442-B of the CLT, it commenced a dialogue with the Government concerning the access of these workers to the right of collective bargaining. In this regard, the Committee: (i) welcomed the Government’s indications that, under the terms of section 511 of the CLT, which recognizes the right to organize of autonomous workers, these workers are also covered by the right to engage in collective bargaining; (ii) noted the indication by the CUT that, although section 511 of the CLT recognizes the right of autonomous workers to organize, this provision does not however grant them the possibility to have access to collective bargaining machinery, particularly in view of the absence of a counterpart and, in practice, the fact that the transition from the status of employee to that of autonomous worker under the terms of section 442-B would have the effect of excluding the workers concerned from the coverage of the collective agreements in force; and (iii) noted the Government’s indication that the emergence of various non-standard forms of work is an additional challenge for collective bargaining in all countries, particularly in view of the low unionization rate. In light of these considerations, the Committee invited the Government to: (i) provide examples of collective agreements or accords negotiated by organizations representing autonomous or self-employed workers or, at the least, of which the scope of application would cover these categories of workers; and (ii) engage in consultations with all the parties concerned with the objective of identifying appropriate modifications to be introduced into collective bargaining machinery to facilitate its application to autonomous and self-employed workers. Noting the absence of information from the Government on this subject, the Committee reiterates its previous requests to the Government and hopes that it will provide specific information on any collective agreements covering these categories of workers and on the holding of the requested consultations with the social partners,

Relationship between the various levels of collective bargaining. The Committee recalls that, under the terms of section 620 of the Consolidation of Labour Laws, as amended by Act No. 13.467, the conditions established in collective labour accords (which are concluded at the level of one or more enterprises) always prevail over those contained in collective labour agreements (which are concluded at a broader level, such as a sector of activity or an occupation). The Committee therefore recalled that, in accordance with Article 4 of the Convention, collective bargaining must be promoted at all levels and that, in conformity with the general principle set out in Paragraph 3(1) of Recommendation No. 91, collective agreements should bind the signatories thereto and those on whose behalf the agreement is concluded. Noting the absence of information provided by the Government in its report on the relationship between the various levels of collective bargaining, the Committee once again requests the Government to: (i) indicate the manner in which respect for the commitments made by the social partners in the framework of agreements concluded at the level of the sector of activity or occupation is guaranteed; and (ii) provide information on the impact of section 620 of the CLT on recourse to the negotiation of collective agreements and collective accords, and on the overall coverage rate of collective bargaining in the country.

Article 4. Promotion of free and voluntary collective bargaining. Subjection of collective agreements to financial and economic policy. The Committee recalls that for many years it has been emphasizing the need to repeal section 623 of the CLT, under the terms of which the provisions of an agreement or accord that are in conflict with the standards governing the Government’s economic and financial policy or the wage policy that is in force shall be declared null and void.

In its more recent comments, after noting the Government’s indication that section 623 of the CLT, adopted in 1967, is not in accordance with the objectives of the Constitution of 1988 and is therefore no longer applied, the Committee emphasized the need to remove from the statutes this provision that is contrary to the principle of free and voluntary collective bargaining set out in Article 4 of the Convention. Once again noting the absence of new information from the Government, the Committee again requests it to take the necessary measures to repeal section 623 of the CLT and to provide information in its next report on any measures adopted in this regard.

The Committee trusts that the inter-ministerial working group created in April 2023 to draw up a proposal for the restructuring of industrial relations and the strengthening of collective bargaining will take fully into account the various points raised and recommendations made in this comment and that the Government will soon be in a position to report tangible progress in this respect.

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