Texts of pending comments

The Committee notes the joint observations of the Single Confederation of Workers (CUT), the National Forum for the Prevention and Eradication of Child Labour (FNPETI) and the National Union of Labour Inspectors (SINAIT) received on 23 October 2020, and the Government’s replies to these observations. It also notes the observations of the National Association of Labour Justice Magistrates (ANAMATRA) received on 6 December 2021.

Article 1 of the Convention. National policy towards the elimination of child labour and application of the Convention in practice.With regard to its previous comments the Committee notes that the Government indicates in its report that the Third National Plan for the Prevention and Elimination of Child Labour and the Protection of Working Adolescents was finalized and is currently in force. The Plan includes among its objectives: (i) prioritizing prevention and elimination of child labour in political and social agendas; (ii) ensuring quality and free education for all children; (iii) protecting the health of children and adolescents against exposure to work-related risks; and (iv) fostering knowledge about the reality of child labour in Brazil. The Committee also notes that according to the National Continuous Household Survey (PNAD Contínua) (2016–2019) conducted by the Brazilian Institute of Geography and Statistics (IBGE), a total of 1,768,000 children and adolescents were engaged in child labour in 2019. The survey also shows that the number of children and adolescents (5 to 17 years of age) engaged in child labour fell from 5.3 per cent (2,100,000) in 2016 to 4.6 per cent (approximately 1,800,000) in 2019. The Committee further notes that the ANAMATRA highlights that, according to the data of the IBGE, of the total number of children engaged in child labour in 2019, 66.1 per cent were Afro-Brazilian children.

The Committee notes that in response to the observations of the CUT, FNPETI and SINAIT related to the abolition of the National Council for the Elimination of Child Labour (CONAETI), the Government indicates that the CONAETI was re-established by the Decree No. 10.574 of 14 December 2020, as one of the thematic committees of the National Labour Council tasked with monitoring, evaluating and proposing policies on child labour. The composition of the CONAETI is tripartite, with the participation of six representatives of the Federal Government, six representatives of employers and six representatives of workers. The Committee also notes that the CUT, FNPETI and SINAIT observe that no measures have been taken to ensure the continuity of the Programme of Action for the Elimination of Child Labour (PETI). In this regard, the Government indicates that the PETI was redesigned with the aim of enhancing existing social welfare services and to align actions with other public policies to create a multisectoral child labour eradication agenda; and that its redesign did not affect the provision of cash transfers or social work carried out with families, but strengthened management and collaboration in five key areas: information and mobilization, identification, protection, advocacy and empowerment and monitoring. The Government adds that even though the COVID-19 pandemic has made it extremely difficult to keep social welfare services and programmes operational and the social protection network active, 8,843 activities have been carried out throughout Brazil at the state and municipal level under all five PETI areas of focus. The Committee encourages the Government to continue taking measures towards the elimination of child labour, including within the framework of the PETI, and requests it to continue providing information on the results achieved. In this respect, the Committee also requests the Government to provide information on the measures taken or envisaged to reduce child labour among Afro-Brazilian children. Finally, it requests the Government to provide information on the activities of the CONAETI, particularly in relation to the monitoring and evaluation of child labour policies.

Article 2(1). Scope of application. Children working in family enterprises. Following its previous comments, the Committee takes due note of the Government’s indication that section 402 of the Consolidated Labour Act, which excludes from its scope work undertaken by children and young persons in family enterprises, is not an exception authorizing child labour and that it in no way undermines the application of article 7 (XXXIII) of the Federal Constitution, which sets the minimum age at 16 years and prohibits hazardous work for young persons under 18 years. Furthermore, the Government refers to section 67 of the Statute of Children and Adolescent, according to which family workers shall not engage in night work, hazardous work, and work carried out during hours that prevent them from attending school. The Committee notes that, according to the statistical information provided by the Government, 30.9 per cent of children between 5 and 17 years engaged in child labour, work as helpers in family enterprises. The Committee requests the Government to take the necessary measures to ensure that, in practice, children working in family enterprises do not engage in child labour, including in hazardous work, and to provide information in this regard.

Articles 2(1) and 7(1) and (3). Minimum age for admission to employment or work, minimum age for admission to light work and regulation of light work activities. The Committee notes that the ANAMATRA refers to a legislative proposal to amend item XXXIII of Article 7 of the Federal Constitution (PC 18/2011), which aims at reducing the minimum age for admission to employment or work, by authorizing children above 14 years to undertake part-time work for up to 25 hours per week. The Committee notes that the rapporteur of the Parliament Commission of Constitution, Justice and Citizenship, in his report dated 18 August 2021, declared the admissibility of PC 18/2021 highlighting that the Convention permits children who have reached the age of 13 years to undertake light work that is not likely to affect their safety, health and education.

In these circumstances, the Committee emphasizes that the overall objective of the Convention is to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons.Moreover, pursuant to Articles 1 and 2, paragraph 1 ofthe Convention, read together, once a minimum age for admission to employment has been specified upon ratification (16 years in the case of Brazil), the Convention provides for the possibility to raise it progressively, but does not allow the lowering of the minimum age once specified. While Article 7(1) of the Convention provides for an exception to the general minimum age by allowing children who have reached 13 years of age to carry out light work, such work cannot prejudice their attendance at school, their participation in vocational orientation or training programmes and their capacity to benefit from the instruction received. Pursuant to Article 7(3) of the Convention, the competent authority shall determine the light work activities and prescribe the number of hours during which and the conditions in which such employment or work may be undertaken.

The Committee observes that the proposed constitutional amendment does not refer to specific light work activities permitted for children from the age of 14 years. Rather, it is broadly drafted so as to permit children to undertake any kind of work or occupation in any sector or in any occupation for up to 25 hours a week. Moreover, in giving effect to Article 7(3) of the Convention, special attention should be given to several key indicators, including the strict limitation of the hours spent at work in a day and in a week, the prohibition of overtime, the granting of a minimum consecutive period of 12 hours’ night rest, and the maintenance of satisfactory standards of safety and health and appropriate instruction and supervision (2012 General Survey on the fundamental Conventions, paragraph 396). The Committee is of the view that authorizing children from the age of 14 to carry out part-time work under such conditions may have a negative impact on children’s school attendance and performance as the time needed for homework related to their education, as well as for rest and leisure could be considerably reduced and therefore may not be considered an authorized exception to the minimum age under the Convention. Therefore, the Committee expresses the firm hope that any legislative proposal to modify the minimum age for admission to employment or to regulate light work activities be considered in light of the above-mentioned provisions of the Convention.

Labour inspection. The Committee notes that the Government enumerates different measures taken by the labour inspectorate to combat child labour in both the formal and informal economy, which include: (i) training for labour inspectors on addressing the various types of child labour; (ii) development of appropriate intervention instruments, including in the informal economy; (iii) inspection operations in child labour hotspots, including in rural areas; and (iv) actions planned in coordination with social partners with a view to the sustainable elimination of child labour hotspots. The Government adds that, as a result of the measures taken, the labour inspectorate found 535 children and adolescents engaged in child labour in the first semester of 2021. A total of 185 children and adolescents were found in child labour in the informal economy during inspections conducted in Maranhão, Espírito Santo, Roraima, Paraíba and Bahia during the same period. The Committee observes, however, that these numbers are still low compared to the overall number of children engaged in child labour in the country (according to the National Continuous Household Survey there were 1,768,000 children). Therefore, while noting the measures taken by the Government, the Committee strongly requests the Government to take the necessary additional measures to strengthen the capacities of the labour inspectorate to effectively detect situations of child labour, particularly in the informal economy, and to provide information about the impact of these additional measures. The Committee also requests the Government to continue providing information on the number of inspections related to child labour that have been carried out, the number and nature of violations detected, the sectors in which they were found, and the penalties applied.

The Committee notes the observations of the National Association of Labour Court Judges (ANAMATRA) received on 6 December 2021 and requests the Government to provide its reply to them.

Articles 3(d), 5 and 7(1) of the Convention. Hazardous work, labour inspection and penalties. In relation to its previous direct request, the Committee notes that the Government indicates in its report that, between January 2017 and July 2021, the labour inspectorate imposed 1,276 penalties on workplace supervisors for violating Decree No. 6481 of 12 June 2008 containing a list of hazardous work prohibited for children. During the same period, the labour inspectorate also issued 68 violation notices for subjecting children and adolescents to other working conditions (not included in the list) that were considered harmful to their physical, psychological, morals, and social development and 71 penalties for allowing workers under 18 years of age to perform night work. The Committee notes that information concerning the number of children found to be in hazardous work is continuously updated and made available through the Radar SIT (Labour inspection statistics and information dashboard) webpage on child labour.

While noting the results of the inspections undertaken to identify situations of children engaged in hazardous work, the Committee notes with concern that, according to the National Household Sample Survey (PNAD contínua) conducted by the Brazilian Institute of Geography and Statistics for the period 2016-2019, a total of 706,000 children between 5 and 17 years of age are still in hazardous occupations (most of them within the age group of 5 to 13 years of age). Moreover, it notes that the ANAMATRA indicates that the number of children undertaking hazardous work who have been victims of accidents at the workplace increased by 30 per cent from 2019 to 2020. The Committee requests the Government to take, as a matter of urgency, all the necessary measures to ensure that children under the age of 18 years are not engaged in hazardous work, including in the informal economy, and that they benefit from the protection afforded by the Convention. It requests the Government to continue providing information in this regard, including on the number and nature of violations of the Decree No.6481 of 12 June 2008 that have been detected by the labour inspectorate and the penalties imposed.

Article 7(2). Effective and time-bound measures. Clause (a). Preventing the engagement of children in the worst forms of child labour. Access to free basic education. With regard to its previous comments, the Committee notes that the Government refers to two programmes that address the issue of education in rural areas, namely: (i) The Way to School Programme, which supports access to education by students living in rural and riparian areas by providing buses, motorboats and bicycles designed specifically for safe transportation in such regions; and (ii) The Land School Programme, which aims at providing training opportunities for teachers in rural areas on a continuous basis and facilitating school enrolment and retention of rural and Afro-Brazilian students. In 2019, some 1,800 teachers in rural and Afro-Brazilian communities benefited from that programme.

The Committee notes that, according to the 2019 National Household Sample Survey – Education (PNAD Education), 99.7 per cent of children aged 6 to 14 were enrolled in school in 2019. School failure or dropout affected 12.5 per cent of children aged 11 to 14 and 28.6 per cent of the children aged 15 to 17. It further notes that, according to the 2021 UNICEF report entitled “Out-of-School Children in Brazil”, the highest out-of-school rates (children aged 6 to 14) are found in rural areas, particularly in the North and Northeast regions of the country. The UNICEF report also highlights that, in absolute numbers, Afro-Brazilian and indigenous children and adolescents aged 4 to 17 who are out of school total 781,577, corresponding to 71.3 per cent of all children and adolescents who are currently not attending school. The Committee further notes the ANAMATRA’s observations that many children who were excluded from distance learning during the pandemic, were taken to work in the countryside, to perform domestic work or to work on the streets. While noting that the COVID-19 pandemic has had an impact on children’s access to school and recalling that education is key in preventing the engagement of children in the worst forms of child labour, the Committee requests the Government to continue to take measures to ensure that all children complete free basic education, particularly those living in rural and riparian areas. In this regard, it requests the Government to provide information on specific measures taken to facilitate access to school for Afro-Brazilian and indigenous children and the results achieved, as well as updated statistical data on school enrolment, retention and drop-out rates disaggregated by age and gender.

Clauses (a) and (b). Preventing the engagement of children in the worst forms of child labour and assistance for their removal, rehabilitation, and social integration. Trafficking and commercial sexual exploitation of children. In reply to previous comments, the Committee notes the Government’s indication that the labour inspectorate is implementing measures to combat the commercial sexual exploitation of children and adolescents, which include training on commercial sexual exploitation of children and adolescents for labour inspectorates and the designing of specific protocols on the subject. It also notes that the Government has put in place the Initial Support Project to improve the protection and assistance networks for child and adolescent victims of commercial sexual exploitation. The project involves the participation of different institutions including the Ministry of Labour and Social Security and the National Coordination Office for Combating Child and Adolescent Labour. In addition, the Federal Traffic Police designed a Mapping Project to identify places along Brazil’s federal roads that lend themselves to the commercial sexual exploitation of children and adolescents. The information is consolidated in a document that serves as guidance in combating commercial sexual exploitation.

The Committee further notes that according to the National Report of the Ministry of Justice and Public Safety on Trafficking in Persons (2017-2020), within the period 2018-2020, 32 child and adolescent victims of trafficking in persons were registered by the Federal Police. Moreover, according to the Ministry of Health, 229 persons under 18 years of age were considered as possible victims of trafficking in persons within the same period. While noting the adoption of measures to combat the commercial sexual exploitation of children and adolescents, the Committee observes that the Government does not provide information on the measures taken to provide child victims of trafficking and commercial sexual exploitation with rehabilitation services, including the establishment of shelters. Therefore, the Committee once again requests the Government to take all the necessary measures to ensure that child victims of trafficking and commercial sexual exploitation are removed from these worsts form of child labour, rehabilitated and socially reintegrated, and to provide information on the results achieved. It also requests the Government to continue providing updated statistical information on the number of child victims of trafficking in persons that have been identified, rehabilitated, and reintegrated.

Clause (d). Children at special risk. Child domestic workers. The Committee notes that according to the National Household Sample Survey (PNAD contínua) for the period 2016–19, the number of children engaged in domestic work within the age group 5 to 17 was 125,528. It also notes the Government’s indication that the labour inspectorate has taken various measures to address child domestic labour, including awareness raising campaigns and the development of training materials for labour inspectors and specific protocols on the issue. Between January 2013 and July 2021, the labour inspectorate removed seven children and adolescents from domestic work and imposed seven penalties on individuals responsible for hiring persons under 18 years of age as domestic workers. While noting the measures taken by the Government, the Committee observes that the number of child domestic workers remains significant, and that very few were identified and removed from this type of work over a period of eight years. Therefore, the Committee urges the Government to strengthen its efforts to ensure that no person under 18 years of age is involved in domestic work, in conformity with Decree No. 6481 of 12 June 2008, and to provide information on the results achieved

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

Article 3 of the Convention. Worst forms of child labour. Clause (a). Sale and trafficking of children. The Committee previously noted the adoption of the Law No. 13.344 of 2016, which amended the Penal Code to criminalize trafficking of children (section 149-A) and requested the Government to provide information on its application in practice. It also requested the Government to inform on the actions implemented under the Third National Action Plan to Combat Trafficking in Persons. The Committee notes that, in 2019, an Inter-ministerial Monitoring and Evaluation Group was created to monitor and evaluate the implementation of the Third National Action Plan (Decree No. 9796 of 20 May 2019). However, it notes the absence of information on specific measures taken within the framework of the Action Plan to combat trafficking of children for the purpose of sexual or labour exploitation, as well as on the number of investigations, prosecutions, and convictions under section 149-A of the Penal Code. Therefore, the Committee once again requests the Government to provide information on: (i) measures taken with the aim of combatting trafficking of children for labour and sexual exploitation, including within the framework of the Third National Action Plan to Combat Trafficking in Persons; and (ii) the number of investigations, prosecutions, and convictions and penalties imposed on the basis of section 149-A of the Penal Code regarding trafficking of children.

Article 7(2). Effective and time-bound measures. Clause (c). Ensure access to free basic education, and whenever possible, vocational training for children removed from the worst forms of child labour. The Committee notes with interest that the Government has developed a methodology for inserting former child workers in vocational training programmes, and that it is being implemented in the states of Maranhão, and Espíritu Santo targeting children who were involved in street trading and garbage collection. The Committee notes that in the context of these interventions, 108 of 112 adolescents found to be working as street vendors have been enrolled in vocational training programmes. The Committee encourages the Government to continue taking measures in this regard and requests it to continue providing information on the results achieved.

Clause (d). Children at special risk. Orphans and other vulnerable children due to HIV/AIDS. The Committee previously requested the Government to provide information on the measures taken to protect HIV/AIDS orphans and on the results achieved. The Committee notes that according to information of UNAIDS, the number of people infected with HIV increased by 21 per cent from 2010 to 2018. Noting the absence of information on this point, the Committee once again requests the Government to provide information on the measures taken to ensure that children orphaned by HIV/AIDS are prevented from being engaged in the worst forms of child labour.

The Committee notes the observations of the National Confederation of Workers in Teaching Establishments (CONTEE), the International Trade Union Confederation (ITUC) and the Single Confederation of Workers (CUT), received on 14 May and 1 and 2 September 2021, respectively.

The Committee notes that these observations contain, inter alia, allegations relating to: (i) the assassination of three trade union leaders in 2020 and several cases of death threats; and (ii) the worsening of violations of the right to collective bargaining in the context of the economic crisis resulting from the COVID-19 pandemic.

Noting the seriousness of some of the allegations contained in the above-mentioned observations, the Committee considers it necessary to be able to examine the corresponding replies of the Government in 2022. The Committee therefore requests the Government to provide its comments on the above-mentioned observations of the trade unions.

[The Government is asked to reply in detail to the present comments in 2022.]

The Committee notes the observations of the National Confederation of Typical State Careers (CONACATE), received on 28 August 2017; of the National Confederation of Industry (CNI) and the International Organisation of Employers (IOE), received on 29 and 31 August 2017; of the Single Confederation of Workers (CUT), received on 1 September 2017; of the National Association of Labour Court Judges (ANAMATRA), received on 1 June 2018; of the New Workers Trade Union Confederation (NCST), received on 10 September 2019; of the CNI, received on 24 September 2020; of Public Services International (PSI), received on 29 September 2020; and of the IOE, received on 1 October 2020 – all these observations relating to the application of the Convention. The Committee requests the Government to send its comments in this regard.

Article 3 of the Convention. Choice of representatives of employers’ and workers’ organizations. In its previous request, the Committee noted the observations of the National Confederation of Liberal Professions (CNPL) indicating that: (i) although tripartite dialogue was being implemented, representatives were often not selected by consensus so that they might adequately represent the trade union movement; (ii) since 2008, the Government had selected only those multisectoral trade union confederations recognized under Act No. 11.648 of 31 March 2008; and (iii) this meant that organizations representing specific branches, categories or sectors of workers were excluded from contributing their expertise, whereas the consensus achieved through social dialogue should reflect the general opinions of all involved. The Committee asked the Government to indicate the measures taken or envisaged to ensure the free choice of representatives of employers and workers in bodies concerned with the application of the Convention, and it notes that the Government has not provided any comments in this regard. The Committee once again requests the Government to reply to the observations of the CNPL and indicate the measures taken or contemplated to ensure that, for the purposes of the procedures provided for under the Convention, the representatives of employers and workers are freely chosen by their representative organizations.

Article 5. Effective tripartite consultations. In its previous request, the Committee asked the Government to continue providing updated information on the effective tripartite consultations held on all matters relating to international labour standards set out in Article 5(1)(a)–(e) of the Convention. The Committee notes the information provided by the Government concerning the effect given to the provisions of the Convention, in particular that: (i) the Tripartite Commission on International Relations (CTRI), which is the principal tripartite body for consultations on international labour standards, has been meeting at least three times a year; (ii) the CTRI also examines issues raised in various international forums that deal with labour issues, such as the G20, Mercosur and the Organization of American States; (iii) in 2018 a working group was established to consider the draft of the Violence and Harassment Convention, 2019 (No. 190), and of the Violence and Harassment Recommendation, 2019 (No. 206), meeting four times during that year; (iv) other tripartite bodies for social dialogue exist in the country, including the National Labour Council (CNT), in which all matters relating to the world of work are discussed, and the Standing Joint Tripartite Commission (CTPP), which, on the basis of the principles advocated by the ILO, was set up to consider various matters relating to occupational safety and health; and (v) the Government proposes, in the context of the CTPP, to revise about 2,000 normative and regulatory instruments in the labour sphere, emphasizing that the revision will be undertaken with the involvement of workers and employers. Furthermore, the Committee notes that although, on the one hand, the observations of the CNI state that the CNT, from its re-establishment in November 2019 to August 2020, held five ordinary meetings and currently has a working group on the issue of telework, and that since its re-establishment in August 2019 the CTPP has held six ordinary meetings and three extraordinary meetings and is reportedly revising regulatory standards; on the other hand, the observations of PSI allege the absence of social dialogue and state that none of the ordinances or provisional measures adopted on account of the COVID-19 pandemic were the subject of consultation either in the CNT or in the CTPP. The Committee requests the Government to send its comments in this regard. The Committee also requests the Government to continue providing updated information on the effective tripartite consultations held on all matters relating to international labour standards set out in Article 5(1)(a)–(e) of the Convention.

In the context of the COVID-19 pandemic, the Committee recalls the extensive guidance provided by international labour standards. The Committee encourages the Government to engage in tripartite consultations and in a wider social dialogue as a sound basis for formulating and implementing effective responses to the profound economic and social effects of the pandemic. The Committee invites the Government to continue to provide updated information in its next report on the impact of the measures taken in this respect, in accordance with Article 4 of the Convention and Paragraphs 3 and 4 of Recommendation No. 152, including with regard to steps taken to reinforce the capacity of the tripartite constituents and strengthen mechanisms and procedures, as well as challenges and good practices identified.

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020), which the Committee is examining principally in the context of the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), as well as in the present comment. The Committee proceeded to update the examination of the application of the Convention undertaken last year on the basis of the supplementary information received from the Government and the social partners this year (see Articles 7 and 8 below).

The Committee notes: (i) the joint observations of the Single Confederation of Workers (CUT), the Confederation of Brazilian Trade Unions (CSB) and Força Sindical, received on 12 June 2020 and examined in the context of Convention No. 98; (ii) the observations of Public Services International (PSI), received on 29 September 2020, which raise issues examined in the context of Convention No. 98 and allege an absence of dialogue between the Government and representatives of public servants, expressing regret that in April 2019 the Government abolished the Standing National Round Table for Negotiations, a forum which, according to PSI, has been essential in the context of the COVID-19 pandemic for negotiating and regulating employment relations in the public health sector and for minimizing the negative consequences in this fundamental service; (iii) the observations of the CUT, received on 1 October 2020, reiterating its previous observations and asserting that the Government has not given any consideration to the Committee’s previous comments; and (iv) the observations of the National Confederation of Education Workers (CNTE), received on 1 October 2020, and the Government’s reply to them. The Committee also takes note of the Government’s replies to several issues which were raised in the observations of the CUT and PSI and which it notes in the present comment (see Articles 7 and 8 below) and in its observation on Convention No. 98. The Committee requests the Government to send its comments on the allegations regarding an absence of dialogue between the Government and representatives of public servants and regarding the abolition of the Standing National Round Table for Negotiations. The Committee notes the observations of the Trade Union of Pernambuco Doctors received on 26 February 2015 as well as the Government’s reply thereon. The Committee also notes the observations of the National Confederation of Typical State Careers, the joint observations of the National Confederation of Industry (CNI) and the International Organisation of Employers (IOE) as well as the observations of the CUT received in August and September 2017. The Committee further notes the observations of the National Confederation of Transport, the New Workers Trade Union Confederation (NEST) and the joint observations of the International Trade Union Confederation (ITUC) and CUT received respectively on 1, 10 and 18 September 2019, relating all of them, to matters examined by the Committee in the present comment.

Articles 4 and 5 of the Convention. Protection against anti-union discrimination and interference. The Committee had previously noted the Government’s indications that, “although freedom of association is protected under the Constitution, the national legislation does not define anti-union acts and this prevents the Ministry of Labour and Employment from taking effective preventive and repressive measures”. In its last comment, having taken note of legislative provisions which provide for the immunity from dismissal of union leaders for up to one year after their term of office has ended, the Committee had expressed the hope that the Government would take all the necessary measures to adopt a legislation that explicitly provides remedies and sufficiently dissuasive penalties for acts of anti-union discrimination against members of a public service trade union, and acts of interference. The Committee notes that the Government indicates that one obstacle to the creation of a legislation which ensures the effective application of the Convention lies in the structure of the Brazilian Federation, formed by the Union, the States, the Municipalities and the Federal District which guarantees the autonomy, both legislative and organizational, of each entity. The Government indicates, however, that regardless of the absence of a provision which guarantees the protection against acts of anti-union discrimination and interference in the public sector, the legal system has always been strong enough to discourage anti-union practices, that the Penal Code provides for penalties for anyone who seeks to obstruct unionization through violence and threats and anyone who violates the rights established by the labour legislation and that protection against such practices is also afforded through the decisions of the courts. Emphasizing once again the need to adopt specific legislative provisions in relation to anti-union discrimination and interference, the Committee reiterates its request and expects that the Government will take all the necessary measures to adopt a legislation that explicitly provides remedies and sufficiently dissuasive penalties for acts of anti-union discrimination against members of a public service trade union, and acts of interference. The Committee requests the Government to provide information in its next report on any progress achieved in this respect and to submit statistics on the number of cases concerning anti-union practices in the public service brought before the courts.

Article 6. Facilities afforded to workers’ representatives. The Committee recalls that in its previous comments it noted the Government’s indication that the legislation recognizes the right to unpaid trade union leave for public servants elected to union office. The Committee requests once again the Government to provide information on facilities other than trade union leave that are afforded to representatives of public employees’ organizations in order to enable them to carry out their functions promptly and efficiently (for example, the collection of trade union dues, prompt access to the management and the workplace, availability of premises, office equipment, availability of notice boards, etc.).

Articles 7 and 8. Participation of workers’ organizations in determining terms and conditions of employment. In its previous comments, the Committee had noted the Government’s indication that, in consultation with workers’ organizations, a proposal was being developed for the amendment of the legislation in order to establish a standing federal bargaining system, providing permanent mechanisms for dialogue, negotiation and the mediation of disputes, and that these proposed regulations would act as a guide for state and municipal authorities. The Committee observes that, while the Government does not provide further information in that regard, it indicates that, regardless of the absence of a specific legislative provision towards the promotion of collective bargaining in the public sector, in practice, public administration entities have always negotiated with representatives from trade unions of public officials and cites, as an example, the negotiations in the Municipality of Petrópolis. The Committee notes, however, that, in their observations, both the CUT and the NCST indicate that the right to collective bargaining in the public sector is very limited and that, having ratified the Convention, negotiating procedures and mechanisms shall be established in the public administration. The Committee also notes the Government’s indication that, in order to give effect to the Convention, it has established, within the Ministry of Economy, a Department of Labour Relations in the Public Service, which, among other functions, promotes dialogue between public administration entities and organizations representing public employees and proposes measures for the resolution of conflicts that arise in such context. The Committee notes that the Government, in its reply to the 2020 observations of the CUT, reiterates information which it provided previously, emphasizing that the federal structure of the State represents an obstacle to the development of legislation that gives effect to the Convention in the country, since a federal law would not be able to regulate the situation of public servants in other federated entities. The Committee duly notes these indications. Recalling that Brazil has also ratified the Collective Bargaining Convention, 1981 (No. 154), which recognizes the right to collective bargaining for public officials, the Committee requests the Government to provide specific information on the mechanisms that allow workers in the public administration to negotiate their conditions of work and employment as well as information about their application in practice. The Committee further requests the Government to provide specific information on (i) the mechanisms that ensure compliance with agreements concluded in the public administration; and (ii) the various dispute settlement mechanisms existing in the public administration, indicating in this regard the role played by the Department of Labour Relations in the Public Service.

Lastly, the Committee notes that the Committee on Freedom of Association has referred to it the legislative aspects of Case No. 3344 concerning the failure to adopt a Bill on collective bargaining in the public sector and in which the Committee: (i) having noted the presentation of a Bill (No. 719/2019) with a view to establishing general standards for collective bargaining in the public service, expressed the hope that legislation for the application of the Convention would be adopted very soon; and (ii) encouraged the authorities to continue consulting with the social partners on the aforementioned legislation (see 392nd Report, October 2020). The Committee requests the Government to inform of any developments regarding discussion of the aforementioned Bill or any other initiatives aimed at giving full effect to the Convention, and reminds it of the possibility of requesting technical assistance from the Office in this regard.

[The Government is asked to reply in full to the present comments in 2023.]

The Committee notes the observations of Public Services International (PSI) received 29 September 2020, which refer to Articles 8, 13 and 16 of the Convention. The PSI states that the insufficient measures taken to ensure workers’ health protection in the context of the global COVID-19 pandemic has put lives at risk, including the suspension of the obligation to carry out medical examinations, and it refers to the number of cases of infection in certain sectors. The Committee notes the Government’s reply to the observations, which has arrived too late for the Committee’s examination at its current session. The Committee will examine both communications at its next session.

The Committee notes the observations of the Single Confederation of Workers (CUT), which were received on 31 October 2020. The Committee observes that the CUT, in addition to providing information on issues already raised by the Committee in its previous comments, refers to the impact of the COVID-19 pandemic on indigenous peoples. The CUT claims that as a result of racial and socio-economic inequalities, and lack of assistance from the State, indigenous peoples, in particular Quilombola communities and isolated or recently contacted indigenous peoples, are in a situation of great vulnerability and heightened risk from the effects of COVID-19.

The Committee notes the Government’s response to the observations of the CUT relating to the impact of COVID-19, received on 4 December 2020. Given that this response was received too late for examination by the Committee at its current meeting, the Committee proposes examining both communications in due course. In addition, the Committee requests the Government to provide its responses to the remaining observations presented by the CUT.

Furthermore, the Committee reiterates the comments adopted in 2019 which are reproduced below.

The Committee notes the observations of the International Organisation of Employers (IOE), received on 2 September 2019, which contain general comments on the application of the Convention; the joint observations of the IOE and the National Confederation of Industry (CNI), received on 31 August 2018; the observations of the National Confederation for Typical State Careers (CONACATE), which include general comments on the application of the Convention received on 28 August 2017, and the observations of the General Confederation of Workers of Peru (CGTP), received on 23 March 2017, which include a report by COICA (a Peruvian indigenous peoples’ organization) on the application of the Convention in various countries.

Representation made under article 24 of the ILO Constitution. Right of Quilombola communities to the lands they traditionally occupy. Alcântara space launch centre. For many years, the Committee has been examining the question of the impact of the establishment of the Alcântara space centre (CEA) and the Alcântara launch centre (CLA) on the rights of the Quilombola communities of Alcântara. The Committee notes that the Governing Body at its 337th Session (October–November 2019) decided that the representation made under article 24 of the ILO Constitution by the Union of Rural Workers of Alcântara (STTR) and the Union of Family Agriculture Workers of Alcântara (SINTRAF), alleging non-observance by Brazil of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), was receivable. The Committee observes that the allegations in the representation refer to the consequences of the extension of the area covered by the Alcântara space launch centre on the rights of the Quilombola communities and the lands traditionally occupied by them. In accordance with its usual practice, the Committee has decided to defer the examination of this issue until the Governing Body adopts its report on the representation.

Article 3 of the Convention. Human rights. The Committee observes that certain United Nations bodies and the Inter-American Commission on Human Rights (IACHR) have expressed concern in recent years at the situation of conflict surrounding territorial claims and at threats and attacks on the rights and integrity of the indigenous peoples of Brazil. The Committee notes the press release of 8 June 2017 of the Office of the United Nations High Commissioner for Human Rights (title: “Indigenous and environmental rights under attack in Brazil, UN and Inter-American experts warn”) in which three UN Special Rapporteurs and a IACHR Rapporteur stated: “In the last 15 years, Brazil has seen the highest number of killings of environmental and land defenders of any country. […] Indigenous peoples are especially at risk”. The Committee notes that the IACHR, in its preliminary observations of 12 November 2018 concerning its visit to Brazil, emphasized that harassment, threats and murders characterized land disputes and forced displacements. The IACHR noted with concern that the impunity surrounding these acts of rural violence was contributing towards their perpetuation and increase. Furthermore, at the time of its travel to Mato Grosso state, the IACHR observed the grave humanitarian situation faced by the Guarani and Kaiowá peoples, largely due to violations of their land rights. The IACHR visited the Dorados-Amambaipeguá indigenous lands, and received information on the victims of the “Caaraó massacre”, during which one person was killed and another six members of the community were injured, as well as reports of frequent armed attacks by militias.

The Committee also notes that the IACHR granted precautionary measures on 29 September 2019 in favour of members of the Guyraroká community of the Guarani Kaiowá indigenous people, since they had prima facie evidence that families of the community are in a serious and urgent situation because their rights to life and physical integrity are at serious risk. The IACHR takes into consideration reports concerning the high level of conflict between members of the community and landowners and concerning death threats (Resolution 47/19, Precautionary Measure (PM) 458/19).

The Committee notes this information with concern. The Committee urges the Government to take all the necessary measures to protect the life, physical and psychological integrity, and all the rights guaranteed by the Convention to indigenous and tribal peoples. The Committee considers that indigenous and tribal peoples can only assert their rights, particularly with regard to possession and ownership of the lands they traditionally occupy, if adequate measures are adopted to guarantee a climate free of violence, pressure, fear and threats of any kind.

Articles 6, 7, 15 and 16. Consultations. In its previous comments, the Committee referred to the process for regulation of the indigenous and Quilombola peoples’ right to consultation which had been under way since 2012. In this regard, the Government indicated that the process of negotiation with the peoples concerned had encountered certain difficulties and that the Secretariat-General of the Government was endeavouring to restore the dialogue. The Government was considering the possibility of proposing a potential consultation mechanism on the basis of a practical case. The Committee also noted that the CNI and the IOE had emphasized that the absence of regulation on the consultations required by the Convention was generating legal uncertainty for enterprises.

In its report, the Government indicates that in recent years a number of indigenous peoples have taken initiatives in this area, indicating to the State the manner in which they wish to be consulted. In this context, they have drawn up their own protocols for prior consultation in which they formalize the diversity of procedures for building dialogue enabling effective participation in decision-making processes that can affect their lives, their rights or their lands. The Government refers in particular to the support given by the National Foundation for Indigenous Affairs (FUNAI) for drafting protocols for consultations involving the Xingu indigenous peoples in 2016, the Krenak indigenous people in 2018 and the Tupiniquim people in 2018, and to discussions under way in the Roraima Indigenous Council (CIR). In this regard, the Committee observes that, according to information on the website of the Public Prosecutor’s Office, other communities have adopted protocols of this type. Moreover, regarding policies, programmes, actions and projects relating to social assistance for indigenous peoples, the Government indicates that FUNAI is intensifying efforts to sign agreements with provider institutions in order to ensure respect for the particular social and cultural characteristics of these peoples and to respect their right to free and informed prior consultation where appropriate.

The Government also points out that there is growing demand for infrastructure from indigenous communities (for electric power, water storage and distribution or road construction). In this regard, FUNAI ensures that all actions, activities or projects respect the right to free and informed prior consultation, so that relations between the Brazilian State and the indigenous communities are not vertical. The Government indicates that FUNAI, through its decentralized units, supplies technical, logistical and at times financial support to partner bodies and municipalities under whose jurisdiction indigenous lands are located in order to organize the necessary meetings.

The Committee welcomes the drawing up of consultation protocols by certain communities and the role played by FUNAI in this respect. The Committee requests the Government to provide further information on the status of these protocols and to indicate how it is ensured in practice that the protocols are applied in a systematic and coordinated manner through the country whenever consideration is being given to legislative or administrative measures which may affect indigenous peoples directly. The Committee also encourages the Government to continue its efforts with a view to the adoption of a regulatory framework on consultations which will enable the indigenous and Quilombola peoples to have a suitable mechanism guaranteeing them the right to be consulted and to participate effectively whenever consideration is being given to legislative or administrative measures which may affect indigenous peoples directly, and which will be conducive to greater legal certainty for all stakeholders. The Committee recalls the need to consult the indigenous and Quilombola peoples as part of this process and to enable them to participate fully through their representative institutions so as to be able to express their views and influence the final outcome of the process. It requests the Government to provide information on the consultation processes undertaken, including on the basis of the consultation protocols developed by the various indigenous communities and the results thereof.

Article 14. Lands. The Committee recalls that the two bodies responsible for the identification and demarcation of lands and the issuing of land titles are FUNAI (for lands traditionally occupied by indigenous peoples) and the National Institute for Settlement and Agrarian Reform (INCRA) (for lands traditionally occupied by the Quilombola peoples). The procedures are regulated by Decree No. 1775/96 and Decree No. 4887/03, respectively. The Government describes the various stages of the procedure, including: the request to open an administrative procedure for regularization; the preparation of a zone study (containing anthropological, historical, cartographic, land ownership and environmental elements); the declaration of limits; the opposition phase; the physical demarcation; the publication of the recognition order establishing the limits of the territory; and the registration and concession of the titles of collective ownership to the community by decree. The Committee notes the statistical information sent by the Government on land demarcation procedures in the states of Mato Grosso and Rio Grande do Sul. It observes that in Rio Grande do Sul, of a total of 48 procedures, 20 have resulted in regularization and 28 are in progress (at the study, declaration or demarcation stage). Regarding Mato Grosso, of a total of 50 procedures, 24 have resulted in regularization and 26 are in progress. The Committee also notes that, according to information on the FUNAI website, 440 lands have been regularized in the country as a whole. Moreover, 43 lands have had their limits identified, 75 lands have had their limits declared and nine lands have had their limits certified. Lastly, for 116 lands, the procedure is at the study stage.

The Committee notes that CONACATE refers in its observations to Constitutional Amendment Proposal No. 215/2000, under examination by the National Congress, the aim of which is to confer exclusive authority on the National Congress to approve the demarcation of lands traditionally occupied by indigenous peoples and also to ratify demarcations which have already been certified. CONACATE indicates that the final decision on any new demarcation of these lands would no longer be under the authority of the competent ministry but under the authority of the National Congress, where agri-industry is heavily represented.

The Committee also observes that, according to the information available on the website of the Federal Supreme Court (STF), in September 2019 FUNAI filed an extraordinary appeal (1.017.365/SC) with the Supreme Court on the issue of the “time frame”. The “timeframe” approach followed by certain jurisdictions means that only lands actually occupied on 5 October 1988, the date of promulgation of the Constitution, should be recognized as lands traditionally occupied by indigenous peoples. Since the STF recognized the general scope of the constitutional issue under examination, its final decision will have binding force in all instances of the judiciary. Moreover, the Committee notes that, according to information on the Congress website, two interim measures were adopted in 2019 aimed at transferring the authority to identify, delimit, demarcate and register indigenous lands from FUNAI to the Ministry of Agriculture, Livestock and Supplies (MPO 870/2019 and MP 886/2019). The first measure was rejected by the National Congress and the second measure was deemed unconstitutional by the Supreme Court.

The Committee observes that the IACHR, in its preliminary observations of 12 November 2018 relating to its visit to Brazil, stated that it had received various testimonies concerning the difficulties and long delays which indigenous communities face regarding access to land ownership. The result of these difficulties was that public lands intended for these communities were occupied by landowners or private mining enterprises, and this gave rise to conflicts involving expulsions, displacements, invasions and other forms of violence. The IACHR also expressed concern at the weakening in recent years of institutions such as FUNAI.

The Committee recalls that Article 14 of the Convention provides that the rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. In this regard, the Committee emphasized in its General observation of 2018 that recognition of traditional occupation as the source of ownership and possession rights is the cornerstone on which the land rights system established by the Convention is based. The Committee trusts that the Government will continue taking all necessary measures to ensure the full application of the Convention with regard to the ownership and possession rights of indigenous and tribal peoples over all the lands which they traditionally occupy. It requests the Government to take the necessary measures to follow up in the very near future on the procedures pending before FUNAI concerning the delimitation, demarcation and registration of indigenous lands and before INCRA concerning lands traditionally occupied by Quilombola communities. The Committee in particular requests the Government to provide information on the measures taken regarding the situation of the Guarani and Kaiowá peoples. The Committee further requests the Government to provide information on the human and material resources allocated to both FUNAI and INCRA to fulfil their mandate at every stage of the procedure – studies, delimitation, demarcation and registration of lands.

The Committee is raising other matters in a request addressed directly to the Government, which reiterates the content of its previous request adopted in 2019.

The Committee repeats the content of its direct request adopted in 2019 which read as follows.

Articles 2 and 7 of the Convention. Coordinated and systematic action. The Committee notes the adoption of the Thematic Programme for the Protection and Promotion of the Rights of Indigenous Peoples included in the federal Multi-year Plan of Action (PPA 2016–2019). It notes that the programme is divided into five main themes, namely: promotion of social, cultural and citizens’ rights; promotion of land and environment management in indigenous lands; guarantee of full ownership of the lands; preservation and promotion of the cultural heritage of indigenous peoples; and promotion of access to health services. Each of these themes has specific targets to achieve and initiatives to develop. The Committee notes that the PPA 2016–2019, in the part describing country context, recognizes that one of the greatest challenges for the indigenous policy of Brazil is to better integrate actions at different levels and improve synergies between them. The Committee requests the Government to provide information on the implementation of the Thematic Programme for the Protection and Promotion of the Rights of Indigenous Peoples, indicating the measures taken in order to achieve the targets set. Please indicate whether evaluations on the implementation of the programme and the results achieved have been carried out, and on the manner in which indigenous and tribal peoples participated.

Article 2(2)(b). Measures to promote the full realization of the social, economic and cultural rights of indigenous peoples. In its previous comments, the Committee noted the information concerning the Bolsa Familia, a direct income transfer programme which benefits families throughout the country in situations of poverty and extreme poverty with access to education and health services. It noted that an agreement was concluded with the National Indian Foundation (FUNAI) to include indigenous and Quilombola families in this programme and support them. The Committee requested information on the impact of the programme on the full realization of the social, economic and cultural rights of indigenous peoples, and on how they were involved in the development of the programme. The Government indicates that in 2018, 114,903 indigenous families (almost half) were beneficiaries and that the programme had made it possible to improve the living conditions of numerous indigenous communities and to provide better access to health and education services. The Government indicates that, following ethnographic studies conducted in indigenous communities, a report on programme implementation among indigenous peoples was presented to the various indigenous communities and the situation was evaluated with their participation, with a view to proposing adjustments at the local level so that indigenous people are provided with more appropriate treatment. Thus, for example, rules that are more flexible have been introduced with regard to the documents required to register members of indigenous communities in the Single Registry for Social Programmes. The Committee welcomes the inclusive approach adopted to ensure that the particular features of indigenous and tribal peoples are taken into account so that they can become part of the Bolsa Familia programme. The Committee requests the Government to continue to provide information on the number of indigenous and tribal families that are part of the Bolsa Familia programme and the extent to which their inclusion has had an impact on their access to the health and education services available to them.

Articles 7 and 15. 1. Diversion of water from the São Francisco river. The Committee notes the detailed information provided by the Government on the hydraulic project, the completion of environmental impact studies and the social and environmental programmes planned and budgeted for in the context of implementing the project. The Committee requests the Government to indicate how the indigenous and tribal peoples concerned participate in the development and implementation of these programmes when they may be affected by them. With regard to the measures taken to protect and preserve the environment of the territories they inhabit, please indicate how the cooperation of indigenous and tribal peoples is ensured.

2. Belo Monte hydroelectric plant (Pará State). The Committee requested the Government to continue to report on developments in the Belo Monte hydroelectric plant project, including information on measures taken to ensure the effective protection of the rights of indigenous communities affected by the construction and activities of the hydroelectric plant. The Government indicates that in 2015, a cooperation agreement was signed between the FUNAI and the enterprise Norte Energia concerning the implementation of the Plan for the Territorial and Environmental Protection of the Indigenous Lands of Médio Xingu. As part of the process of granting a licence to the hydroelectric plant, consultations coordinated by the Brazilian Institute of the Environment and Renewable Natural Resources (IBAMA) and supported by the FUNAI were held with the indigenous communities affected, concerning all of the villages in the 11 indigenous lands affected. A considerable number of meetings and public hearings with indigenous communities have been held and the measures proposed by indigenous communities have been taken into account in the Basic Environmental Project for Indigenous Communities (PBA-CI). The Government considers the consultation to be an ongoing process in which communities are provided with information and support in order to ensure that they participate effectively and enable them to express their views on the project and its impact. The PBA CI includes a management plan and ten programmes, including an institutional capacity-building programme for indigenous organizations. The Government indicates that the foundations have thus been established to mitigate and compensate for impacts on affected communities and to promote their involvement and participation in decision-making spaces.

The Committee further notes that in September 2019, a first conciliation hearing was held before the Conciliation and Arbitration Chamber of the Office of the Attorney-General of the Union (AGU). Conciliation forms part of the public civil action brought in 2004 by the federal prosecution service concerning the impact of the construction of the plant. The parties reached two agreements that will serve as the basis for further discussions; they agreed on the creation of an oversight committee for the PBA-CI and that the enterprise would audit the damage caused by the works to all indigenous peoples of Médio Xingu, with a view to the payment of compensation. The Committee requests the Government to provide information on the results achieved in the context of the conciliation process, in particular on the results of the audit and the manner in which indigenous peoples are compensated. Please also continue to provide information on the manner in which indigenous peoples participate in the implementation of the PBA-CI project and associated programmes.

3. Cinta Larga people. Unlawful mining and logging. With regard to the need to protect the indigenous people of Cinta Larga, established on the indigenous land of Parque do Aripuanã (State of Mato Grosso), from intrusion by third parties on their lands, the Government refers to a number of monitoring visits carried out by the Office for the Coordination of Territorial Control (CGMT), which is linked to the territorial protection department of the FUNAI, to prevent and monitor intrusions, illegal timber extraction activities or any other damage. The Government indicates that the present context remains difficult and that there is a long and recurrent history of unlawful practices. Consequently, sustained action is needed to protect territories on a continuous basis and limit such practices. The Committee requests the Government to continue to take all necessary measures to ensure the protection of the rights of the indigenous people of Cinta Larga to the lands that they traditionally occupy, as well as their resources. It requests the Government to provide information on the means available to the CGMT to carry out monitoring activities and to specify whether the public prosecution service and/or the police participate in these activities. Recalling the importance of combating impunity, the Committee requests the Government to provide information on judicial proceedings brought against persons who illegally enter the lands and exploit the resources of the people of Cinta Larga and, as applicable, the convictions handed down.

Articles 26 and 27. Education. The Committee notes that the Thematic Programme for the Protection and Promotion of the Rights of Indigenous Peoples recalls, in the part describing the country context, that the access of indigenous peoples to a differentiated and quality education at all levels is the responsibility of the Union and the federal States, which are required to develop specific indigenous educational programmes. According to this document, indigenous school education is addressed through one-off, sporadic measures and dialogue with indigenous peoples; training courses for teachers are inadequate and curriculums and calendars are not appropriate to indigenous schools; and the rate at which schools are built and specific teaching materials are developed is low. The Committee requests the Government to take the necessary measures to ensure that members of indigenous peoples and Quilombola have access to quality education at all levels on an equal footing with the rest of the national community, and that education programmes are developed with these peoples. Please provide statistical information on school attendance rates among indigenous children at the primary, secondary and higher levels, as well as on school drop-out rates, if available, disaggregated by ethnic group, gender and age.

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