REPRESENTATION (article 24) - BRAZIL - C029, C105 - 1995

1. Latin American Central of Workers (CLAT)

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Report of the Committee set up to examine the representation made by the Latin American Central of Workers (CLAT) under article 24 of the ILO Constitution alleging non-observance by Brazil of the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105)

Report of the Committee set up to examine the representation made by the Latin American Central of Workers (CLAT) under article 24 of the ILO Constitution alleging non-observance by Brazil of the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105)

Decision

The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

A. Introduction
1. By letter of 10 February 1993, repeated on 18 June 1993, the Latin American Central of Workers (CLAT) made a representation under article 24 of the ILO Constitution alleging the non-observance by the Government of Brazil of the Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105).
2. The Forced Labour Convention, 1930 (No. 29), and the Abolition of Forced Labour Convention, 1957 (No. 105), were ratified by Brazil on 25 April 1957 and 18 June 1965 respectively and are in force for the country.
3. The provisions of the Constitution of the International Labour Organization concerning representations are as follows:
Article 24
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
Article 25
If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
4. The procedure to be followed in the event of a representation is governed by the revised Standing Orders adopted by the Governing Body at its 212th Session in March 1980.
5. In accordance with article 1 and article 2, paragraph 1, of the Standing Orders, the Director-General acknowledged receipt of the representation, informed the Government of Brazil and brought the representation before the Officers of the Governing Body.
6. At its 258th Session (November 1994) the Governing Body decided, on the recommendation of its Officers, that the representation was receivable, and set up a committee to examine it, composed of Mrs. Mayoral (Government member), Chairperson, Mrs. Sasso-Mazzufferi (Employer member) and Mr. Falbr (Worker member). In November 1993, Mr. P.S. Sundaram was replaced by Mr. K. Ahmed (Worker member).
7. In accordance with the provisions of article 4, paragraph 1(a) and (c), of the Standing Orders, the Committee invited the Government to supply its observations on the representation.
8. The Government made numerous observations on the representation in various communications received in 1993 and 1994 and the complainant organization also submitted supplementary information.
B. Examination of the representation
9. The CLAT's allegations refer to the situation of many workers, in various sectors of the rural economy, who are subjected to forced labour and debt bondage. According to the CLAT, workers are recruited on the basis of false promises, transported from their places of origin or residence, confined to workplaces which are isolated or difficult to reach, have their work papers (carteiras) taken away from them, are forced to work in subhuman conditions, in many cases without a wage and sometimes only in exchange for poor food, work long hours, are housed in precarious, unhealthy and unsafe accommodation, and are forcibly prevented from terminating their employment relationship by acts of physical and moral violence. Many minors are in the same situation.
10. According to the CLAT, such situations are due to a number of factors which include extreme poverty, the high concentration of land ownership, the imbalance resulting from the massive investment of capital by large enterprises in regions in which there was no or insufficient means for defending the interests and rights of the population, as well deficiencies in the administration of justice.
11. According to the CLAT, although slave labour in Brazil is not a recent practice, it has increased since 1964 following the high level of investment in the so-called "legal Amazon", through the "Superintendency for the Development of the Amazon". In an attempt to modernize and develop the region, tax incentives have attracted large financial and industrial groups, which have been granted tax reductions of up to 50 per cent provided that two-thirds is invested in agricultural or industrial projects in the "legal Amazon". These groups include national banks such as BRADESCO, BCN (Labour Credit Bank), Banco Real, Banco Bamerindus, and multinational corporations such as Volkswagen, Nixdorf and Liquigaz. Since the volume of resources depended on the size of the land ("more land more money"), such projects resulted in the financing of large estates by the Government and a worsening of the problem of land concentration, which in the end encouraged the exploitation of rural workers.
12. According to the CLAT, slave labour in rural areas in Brazil must also be set in the wider context of rural violence, the cause of which is the capitalist model based on concentration and exclusion and distorted labour relations. This phenomenon is closely related to the modernization of agriculture in the country and the role of the financial system in agricultural activities.
13. The CLAT alleges that the highest concentration of cases involving slave labour has been recorded in areas in which development projects such as the Carajas programme of the World Bank have been implemented.
The scope of the problem
14. According to figures recorded by the Pastoral Commission on Land (CPT) CLAT reported that 27 complaints were made in 1991, alleging the existence of "slave labour" involving 4,883 persons in 11 states: Pará, Mato Grosso, Mato Grosso do Sul, Alagoas, Bahia, Espíritu Santo, Minas Geraís, Río de Janeiro, Sao Paulo, Paraná and Río Grande do Sul. In 1992 the CTP documented 18 cases involving 16,442 persons subjected to forced labour. In 1993, the total number of persons rose to 19,940.
15. The CLAT points out that the cases of slave labour that have been denounced and recorded are only part of the phenomenon, the true scope of which is unknown: according to some estimates, 60,000 rural workers are subjected to slave labour each year, irrespective of other sectors such as charcoal production and mining.
16. According to the CLAT, charcoal production, tree-felling (mainly in the region of Espíritu Santo and Río Grande do Sul), deforestation and reforestation activities (in the states of Amazonía, Mato Grosso, Pará, Rondonia), the manufacture of alcohol and agricultural activities for the cultivation and harvesting of coffee and tomatoes are the main sectors of the economy in which such situations have been identified. The annex contains the list of haciendas and enterprises mentioned in the different documents communicated by the complainant organization.
The coalyards
17. The CPT denounced 19,578 cases of slave labour in Brazil in 1993 including 8,000 cases in the coalyards of Ribas do Río Pardo and Aguas Claras in Mato Grosso do Sul. According to the CLAT, slave labour in the country is concentrated in the coalyards.
18. The National Federation of Agricultural Workers (CONTAG), in observations communicated by the complainant organization in June 1994, refers to what it believes has given rise to the situation in the coalyards in the northern region of the state of Minas Geraís: concentration of land ownership, lack of agrarian reform, lack of support for small-scale production, widespread penetration of reforesting activities, and lack of inspection. (It also refers to the setting up by the National Assembly of a parliamentary committee of inquiry to examine the situation in the coalyards in the northern region of Minas Geraís.)
19. CONTAG refers to estimates by the Ministry of Labour that more than 20,000 persons work in eucalyptus-felling and charcoal production for the large state steelworks, and to information from ABRACARV (Brazilian Charcoal Association) that charcoal production in 1993 exceeded 32 million cubic metres, worth $3.26 billion. In 1992 the production and consumption of charcoal generated $473 million in taxation.
Deforestation
20. The documents communicated by the complainant organization indicate that some of the most flagrant cases of slave labour are to be found in the deforestation sector in the Amazon states. According to the CLAT, deforestation has been used as justification by various financial groups in the state to obtain large tax benefits and subsidies from such organizations as the World Bank. The use of intermediaries or subcontractors, responsible for deforestation by such groups or states, ensures that workers are kept at a distance in legal terms from the economic interests involved in such projects; but the slave labour present in this sector of activity is linked through a complex network of relations to major financial groups. In one of the most well-known cases, that of the "Fazanda Reunida", a property belonging to the most important private banking group in Brazil, BRADESCO, the federal police intervened in the hacienda in 1973 after denunciations of slave labour had been made. In 1979 the Higher Military Court in Brazil denounced the existence of slave labour in the Alto Río Capim hacienda, which is also owned by BRADESCO. In 1980 the national press denounced the case of a worker who had been severely beaten when he tried to escape, and in 1984 the police freed 29 workers who had been subjected to forced labour on the same hacienda.
21. As regards deforestation, the temporary workers employed in the felling of trees and clearing of ground for pasture are recruited by so-called "gatos", and their employment relationship with the haciendas is a distant one.
The transfer of workers from one part of the country to another (aliciamiento)
22. According to the complainant organization, although the practice of aliciamiento (inducing workers to accept their transfer from one part of the national territory to another) is illegal (section 207 of the Penal Code), this form of recruitment is used to send workers far from their place of origin or residence. According to the CLAT, false recruitment promises are made by "gatos", intermediaries who deceitfully promise good wages and good working conditions to workers who, because of widespread unemployment and poverty in the region, agree to move to places far from the main population centres. At the time of recruitment the "gato" hands the worker a sum of money (as part payment in advance) which he can leave with his family; in many cases this advance payment is the first step towards debt for the worker. The transfer of labour increases the vulnerability of workers, who in many cases do not know exactly where they are working, and encourages coercive practices. Workers are often transported in unsafe conditions; between 1986 and 1992 the CPT recorded 105 accidents in which 274 labourers (boias frias) lost their lives, and in 1992 seven accidents caused the death of 44 workers.
23. According to the CLAT, the main region to which workers were sent in previous years was the north-east; they are now mostly sent to the south-east (Minas Geraís and Paraná). There have even been cases of an exchange, with workers from Paraná being transferred to Minas Geraís and vice versa. A report by the Regional Labour Department (DRT) of Minas Geraís on an inspection carried out between June and September 1993 in 61 state haciendas noted that most of the workers were from Paraná.
Debt bondage
24. The CLAT alleges that, after their transfer to regions far from their places of origin or residence, workers find that they have contracted a "debt" in respect of the advance partial payment made, their transportation, tools, etc. At the workplace the debt increases because the only source of food is the company store. The repayment of the debt means that workers can be kept working for months or even years without a wage.
Working conditions
25. The allegations made by the complainant organization contain a wealth of information about the situation of workers subjected to slave labour. Common to all these situations is the complete dependence of the worker, the impossibility of terminating the employment relationship because of the debt contracted, and deceitful recruitment practices based on false promises about the amount of the wage. Wages, which in many cases are below the legal minimum, are not paid (reports from workers in the GRALHA AZUL hacienda) or are paid only partially and their amount is not sufficient to cover the debt which continues to increase (reports from workers in the Río Brilhante and Cachoeira alcohol manufacturing enterprises). Food is sold on the hacienda and the distance makes it impossible for workers to reach any other store. Many accounts contained in the allegations refer to the common practice of physical punishment (reports from workers on the GRAMA hacienda; reports from workers at the PASA TEMPO state enterprise (Río Brilhante) about the murder of a worker), the makeshift nature of the accommodation, the deplorable sanitary conditions and excessively long hours of work (12 to 16 hours a day), and the torture inflicted on workers who attempt to escape (reports from workers who escaped from the hacienda). In the case of the CACHOEIRA alcohol manufacturing enterprise (Río Brilhante) the reports refer to deceitful recruitment; the withholding of documents; the non-payment of wages; the use of physical violence (by torture) by armed guards against workers who dared to complain; subhuman working and housing conditions; food being served (rice and flour) once a day, in unwashed tins, the cost of which is deducted from their wages; and the exploitation of minors and indigenous persons. In the case of the CASTANHAL (Aripuaña) hacienda, workers said that it was impossible for them to leave their place of work before paying the "debt" which had been contracted with the employer under threat of death, and that they were obliged to get food from the enterprise store, the cost of which was deducted from their wage -- which was never sufficient to cover the debt.
Inspection
26. According to the complainant organization, inspection activities, with few exceptions, leave much to be desired. On some occasions, inspections are carried out long after a denunciation is made, as in the case at the Sao Luis hacienda where the inspector reported that there was no evidence of slave labour in 1994, although the denunciation had been made by the CPT in 1990. In other cases involving similar situations, some inspection reports conclude that existing conditions are such as are defined as placing persons in a situation analogous to that of slavery (an offence under section 149 of the Penal Code), and others that labour provisions have been violated. In some cases, there may be an ignorance of the law and in others instances of bad faith and cynical attitudes. In the case of the inspection carried out at the JACIARA SA (Mato Grosso) enterprise where workers who had escaped had denounced the existence of slave labour, it was noted that "the denunciation of slave labour is unreceivable since we (the inspectors) have been able to come and go in the enterprise without any interference and we assume that everyone else is equally free to come and go. Working conditions are no worse here than in neighbouring enterprises; they are not good or decent but they are what our market and our culture provide."
27. In the UNIAO hacienda, in the municipality of Xinguara, Pará, where slave labour had been denounced, the Regional Labour Department (DRT) of Pará reported that it had found no evidence of slave labour, whereas the Attorney-General (Public Ministry) was taking action against the same hacienda for the alleged infringement of section 149 of the Penal Code (placing a person in a situation analogous to that of slavery).
28. The complainant organization alleges that the different interpretations of the concept of slave labour mean that the situations denounced may be qualified differently. The importance of how they are qualified can be gauged from the different penalties which may be imposed in one case or another. The police (federal or state) believe that slave labour requires the presence of physical coercion (for example the presence of armed guards), whereas the Office of the Attorney-General (Public Ministry) considers that such aspects as the withholding of a worker's identification papers, the existence of a steadily growing debt which it is impossible to pay off, and subhuman working conditions are sufficient grounds for qualifying the offence as that of placing persons in a situation analogous to that of slavery.
Judicial proceedings
29. The complainant organization states that legal proceedings are only rarely initiated as a result of denunciations of slave labour and that, in those cases in which proceedings have been initiated, they have become bogged down at the preliminary stage. This may be attributed to the fact that it is usually difficult to determine which of the various authorities is competent to look into, prosecute and judge the cases denounced since, depending upon whether they concern a violation of labour provisions or an infringement of criminal law, they may come under state or federal jurisdiction. On a number of occasions the local military police have refused to intervene, on the grounds that slave labour is a federal crime and within the jurisdiction of the federal police (for example, the case of the VIQS hacienda, Barreiras, Bahia). According to the CLAT, a common characteristic of the Government's failure to take action is the extreme delay with which it deals with complaints as serious as those concerning forced labour. In the case of the ALTEROSA hacienda the "gato" accused was arrested and released in 1993, and the first hearing was held only in March 1994 when the witnesses and victims were no longer in the places mentioned.
Impunity
30. The complainant organization alleges that in most cases those responsible for forced labour are not punished and that, when penalties are imposed, they are not serious; indeed, subsequent offences are common. A case in point was the coalyards of Maciso Florestal de Ribas do Río Pardo, Aguas Claras, Tres Lagoas and Navirai, a reforestation project providing $175 million in tax incentives for 200 coalyards and 11 reforestation enterprises covering 600,000 hectares and employing some 8,000 carvoeiros (coalworkers) who work 12 hours a day producing coal for iron and steel works in return for food. The coalyards were fined on two occasions in 1992 and 1993 for violation of various provisions in the Labour Code (CLT): "work involving excessive efforts, appalling living conditions, failure to comply with safety and health regulations, child labour". The complaint of forced labour was declared inadmissible in 1992; and in 1994, after a mission (see paragraph 57) noted the existence of forced labour in the coalyards, an "agreement" was signed between ABRACAVE (Brazilian Association of Charcoal Workers) and enterprises working in the charcoal producing sector, under which the latter undertook to "supervise the working relations between the empreteiras (enterprises) and their employees, to guarantee that workers are paid at least 30 per cent of their wages, to improve health and living conditions, etc. ...".
31. The Committee also notes the observations made by the complainant organization concerning "terceirizaçao" (subcontracting) which means that those responsible for forced labour go unpunished. For example, in June 1993 the metalworkers trade union of Osasco received a complaint concerning the working conditions of workers on the CACIQUE hacienda, which belongs to Mamore Mineraçao e Metalurgica SA of the Paranapanema group. In October, the Inspectorate of the Ministry of Labour found evidence of slave labour. The recruitment of workers and the production of coal were entrusted to a service enterprise engaged by Mamore. In this case, the Mamore enterprise was fined for "direct responsibility in the irregularities noted". In November 1993 the Ministry of Labour, regional delegation of Sao Paulo, subdelegation of Osasco, informed the public in general and enterprises in particular that large enterprises were recruiting the services of "third parties" to carry out production activities and that the majority of these subjected workers to slave labour to meet the demands of the large enterprises which benefit from the work carried out in such conditions.
32. The CLAT alleges that cases resulting in prison sentences are extremely rare and those who are really responsible are protected by a network of service enterprises, managers and "gatos" to whom the real owners and beneficiaries delegate certain of their production activities. In a complaint alleging that a number of families in the Paraibuna tomato plantations had been subjected to forced labour, the CLAT pointed out that the offender had been tried for violating section 149 of the Penal Code. In the few cases in which penalties had been imposed, these had fallen on small landowners or tenant farmers -- or on hired hands. On no occasion had the large enterprises or financial groups at the end of the production chain based on the forced labour of thousands of workers been held responsible.
33. The complainant organization also refers to the statement of the President of the Order of Lawyers of Brazil to the United Nations Committee on Human Rights in 1993: "The existence of slave labour reveals problems linked to the need for agrarian reform and the influence of large rural properties. Trials, whenever they take place, establish the responsibility of gangsters or small labour contractors. Large landowners, who profit from such practices, never feel the weight of the law."
34. The CLAT quotes the case of two workers in 1983 who managed to escape from the Vale do Río Cristalino hacienda in Pará (139,392 hectares), bought by Volkswagen in 1973; they denounced in Porto Alegre (Mato Grosso) the working conditions in this hacienda. The local magistrate ordered the subcontractors to compensate the workers but stated that Volkswagen was not responsible for the working conditions imposed by the subcontractors. The regional court declared Volkswagen responsible and the case was submitted to the Santana do Araguaia court where it was filed. Volkswagen sold the Vale do Río Cristalino hacienda in 1986.
35. The complainant organization is of the opinion that nothing effectively stands in the way of forced labour, because in the best of cases penalties merely take the form of fines.
36. The complainant organization believes that, notwithstanding the existing legal arsenal, the Government has failed to do anything because of the lack of coordination between the various legal bodies. For instance, the Council for the Defence of Human Rights (CDDPH), under the Ministry of Justice, succeeded in bringing the existence of slave labour to the attention of the highest levels and in exerting a moral pressure; however, its action has remained extremely limited. The cases in which this organization has managed to determine responsibilities have been those in which it has acted jointly with the federal Public Ministry.
37. The complainant organization alleges that the existence of situations of slave labour, the inefficiency of the labour inspectorate, the delays in trials and the impunity of those responsible clearly constitute a violation of Conventions (Nos. 29 and 105) on forced labour ratified by Brazil in 1957 and 1965 respectively.
C. The Government's observations
38. In its first reply in 1993, the Government pointed out that to comply with ILO Conventions Nos. 29 and 105 it had launched a programme to eradicate forced labour (PERFOR) in 1992. The aim of this programme was to bring about improvements in working conditions in rural areas, in inspection procedures and in the application of penalties; it also set out to upgrade the legal instruments designed to eradicate forced labour.
39. The Government also communicated the Labour Inspectorate's summary of its inspections in 1992, which contained the conclusions of the authorities entrusted with the inspection of 21 complaints of forced labour. In three cases the Inspectorate upheld the complaint: TANAC (connected to the Tanagro group); a hacienda in Paraibuna leased by Mr. Katuraguil and RECIFLORA. Legal proceedings were brought against the owner of the RECIFLORA enterprise, the tenant of the hacienda in Espíritu Santo, in Paraibuna, and the human resources manager of TANAC, on a charge of infringement of section 149 of the Penal Code.
40. The Government also pointed out that a National Labour Board had been set up under the Ministry of Labour and that, within this board, a Committee for the Elimination of Forced Labour had been created in 1993. This committee is made up of representatives of employers' and workers' organizations, state bodies and civil organizations and has taken the place of PERFOR (set up in 1992).
41. In 1993 a working group, in which the Attorney-General, the CONTAG, the CTP and the Committee for the Elimination of Forced Labour participated, drafted a Bill, pending before Congress, on the definition of the offence of placing a person in conditions analogous to slavery (section 149 of the Penal Code), on the competence to investigate and judge complaints and on the establishment of heavier penalties.
42. Concerning the above-mentioned Bill, the Government pointed out that although precarious accommodation, the lack of tarjeta laboral, appalling food or the lack of food, the lack of medical assistance, pay below the statutory minimum wage and delays in pay do not in themselves constitute the crime of slave labour, the existence of a debt preventing the working from leaving his work may be considered strong evidence of forced labour. Annex 1 of Interdepartmental Directive MTB No. 01 of 23 March 1994 states that "there is strong evidence of forced labour when workers are placed in conditions analogous to slavery, as a result of fraud, debt, the withholding of wages and documents, threats or violence which restrict the freedom of workers and their families to leave the workplace, when the employer refuses to provide transport to allow workers to leave the place to which they have been taken, and when there are no other means of leaving in conditions of safety given the difficult economic or geographical conditions prevailing in the region."
43. The same annex considers that there is strong evidence of aliciamiento when someone, "on his own behalf or representing another person, hires workers to perform services in other areas throughout the country without taking the necessary measures for regular recruitment in accordance with paragraph 2, section 1, of the procedures for hiring set forth in Directive No. 01 of 24 March 1994".
44. The Government also points out that in 1993, concerned by the increase in the incidence of slave labour in Brazil, the Committee of Labour Administration and the Public Service organized a seminar; the CPT (Pastoral Commission on Land), the National Confederation of Agricultural Workers (CONTAG), the CUT (Unitarian Central of Workers), the Attorney-General and a dozen members of Parliament attended this seminar. In its conclusions, the seminar noted the slowness of the judiciary and Ministry of Labour in investigating cases of forced labour, the problem of designating authorities to carry out enquiries, the imprecision of the concept of slave labour, the failure to punish the authors of the crimes and the lack of joint action between the public authorities and civil bodies.
45. The Government pointed out that this seminar led to the setting up of a Subcommittee on Slave Labour and Occupational Accidents which, amongst its other activities, organizes visits to a number of coalyards and distilleries in the State of Mato Grosso do Sul. A visit to the BOA AGUADA hacienda (municipality of Aguas Claras -- leased by SEMCO) revealed that the workers, most of whom were from Minas Geraís, had been hired to work with the false promise of good wages; upon arriving at the hacienda they were expected to repay their travel costs, obliged to buy from the company store and had no working papers; furthermore, in some cases workers had not been paid for an entire year and the children were not going to school but working in the coalyard to help their parents.
46. In the DEBRASA hacienda (which belongs to the Alagoas group PESSOA QUEIROZ (Brasilandia)), a distillery covering 19,000 hectares, 1,200 indigenous workers are employed in sugar-cane cutting. The minors were hidden during the visit, living conditions were "more like a concentration camp than a home", and the football ground and river could only be used in return for payment. On this occasion, a complaint was lodged against the FUNAI (a body under the Ministry of Justice) for its involvement in the hiring of indigenous workers.
47. The same report communicated by the Government contains the conclusions of the reports drawn up by the regional delegation of labour after it had inspected the distilleries and coalyards in Mato Grosso do Sul. The findings were as follows:
-- SONORA distillery (Sonora) and the Sonora agricultural enterprise belonging to the same group: according to the report, 891 workers in the distillery and 308 workers in the agricultural enterprise were employed under deplorable working conditions; 500 indigenous workers were working in the area;
-- RS distillery SA (Santa Olinda hacienda, Sidrolandía): 854 workers, including 115 indigenous workers, were employed under conditions similar to those described above;
-- JAPECANGA coalyard (Ribas de Río Pardo): 240 workers, including 60 women and 100 minors.
48. The same report refers to the system of slave labour imposed on more than 1,500 rural workers, including about 150 children and adolescents in the VIQS and FLOR BOA ESPERANZA haciendas (Barreiras), which are involved in the production of soya and tomatoes. In their report the inspectors from the Ministry of Labour noted that almost none of the workers and their families on these haciendas had been registered; they also observed that they worked excessive hours, including Sundays and holidays, without being paid wages (let alone overtime) and that they lived in tiny huts protected by plastic bags, without running water or sanitary installations. The inspectors concluded that they were dealing with a system of labour which could be qualified as semi-slavery.
49. The report also refers to the situation of agricultural workers from the Santa Catarina region in the haciendas of the municipality of Caçador. It concludes that these workers are reduced to a situation of slavery because they are bound by an agreement (which is not officially mentioned in any document) under which the owners take over the expenses incurred by workers when they are farming and then deduct these from the sales price of the harvest which the worker is obliged to sell to the owner at a price set by the latter.
50. The report also refers to the complaints in the national press on the situation of workers in the RURAL FORTE enterprise in Río de Janeiro, the TATU hacienda, the MAMORE enterprise and the CAPOEIRA GRANDE hacienda in the State of Sao Paulo.
51. The Government likewise communicated the report of the Secretary of State of Justice and Citizenship of the State of Espíritu Santo (1993) concerning the complaint lodged by SINTRAL (Trade Union of Forestry and Firewood Workers from the north of the state) of Espíritu Santo, which alleged the existence of slave labour involving 12,000 workers in the northern part of the state. The investigation conducted by the officials responsible for looking into the complaint revealed the existence of a situation of actual slave labour involving over 1,200 workers, among whom were children between 9 and 11 years of age, who were being used by the "empreteiras" (service enterprises) working for large enterprises in the wood sector such as ARACRUZ FLORESTAL, FLORESTA RIO DOCE, ACESITA, PAIS, FIESA and CBF. Their report stated that the phenomenon known in Brazil as "tercerizaçao" (intermediate enterprises providing services for large enterprises or economic groups), which is aimed at getting more out of the manpower employed, encourages the exploitation of workers in conditions of slavery and the impunity of the large enterprises that benefit from such practices.
52. In 1994 the Government reported that 59 complaints of forced labour had been investigated in 1993. It added that all the complaints that had come to the knowledge of the Labour Inspection Secretariat (SEFIT) and the regional labour delegations (DRTs) had been handled quickly and carefully, and that a database had been set up for all complaints arising out of inspection reports and joint inspections conducted with other concerned bodies such as the Public Ministry, the federal and military police, the trade unions and the Pastoral Commission on Land.
53. The Government emphasized that the establishment of a Committee for the Elimination of Forced Labour reflected its intention to institutionalize the activities of the various government and civil bodies at the federal level; in several states coordination had likewise been institutionalized through the creation of a number of committees.
54. In September 1994 the Government replied to allegations by the complainant organization that forced labour existed in several regions of the country and various sectors of the national economy. All 29 complaints lodged (some of which involved several enterprises or haciendas) were investigated by the appropriate authorities. For the most part, even where the inspection confirmed the existence of conditions of forced labour, the action taken entailed the imposition of fines or the setting of a period of 10 to 60 days to regularize the situation, subject to a fine, for infringement of the Labour Code (CLT); in one case negotiations with trade union participation resulted in the payment of compensation to enable a worker to return home. Altogether three warrants were issued for the preventive arrest of a manager and of two "gatos" in a coalyard and a hacienda.
55. The Government also sent the report of the Special Sub-Committee on Slave Labour (Administration and Public Service Labour Committee), which concludes that forced labour is a reality in Brazil and that the only effective means of combatting and eliminating it is through joint action by the legislature, executive and judiciary and civilian society. The trade unions, the Church and non-governmental organizations should also participate in formulating and implementing a policy to combat slave labour and degrading conditions of work. The report contains draft amendments to the Penal Code and proposes the creation of a parliamentary inquiry into conditions of work in rural areas.
56. The Government indicated, furthermore, that on 27 June 1995 the President of the Republic established GERTRAF (Executive Group on the Repression of Forced Labour) whose competence, amongst others, was to draw up, implement and supervise a comprehensive programme on the elimination of forced labour and to collaborate with the ILO, the Public Ministries on the federal level and from the states with a view to complying fully with the relevant legislation. The Government also stated that there had been a change of government in January 1995 and that the new Government has a genuine interest and the real intention of taking measures to eliminate forced labour.
Additional information
57. The Committee has taken note of the report of the official of the ILO Office in Brasilia who took part in a fact-finding mission to the coalyards of Mato Grosso do Sul, where the situation is described as follows: the production line consists of the workers responsible for the ovens, the cane cutters, the transporters, the "gatos" and the office staff.
58. In the case of the cane cutters and the workers responsible for the ovens the existence of debt bondage is obvious, since most of the workers come from distant parts, the coalyards are isolated and the workers have no cash; the "gato" provides them with tools, food and medicine at exorbitant prices and is their only supplier. Wages are fairly low, and when the workers arrive at the coalyard they are already in debt for the cost of transport and food during their voyage. According to evidence given to the ILO official taking part in the mission by a worker from Minas Geraís who had arrived at the coalyard with his wife and children two weeks before, he knew neither what his wage was nor how much he owed. The "gato" said that he would pay CR150,000 (around 140 dollars) per hectare (10,000 square metres) of cane cut, out of which CR215,000 would be deducted for the transport, food, tool and water bill that the worker and his family had run up during the two weeks. In other words, not only would the worker receive nothing from his first wage but he already owed a substantial sum of money that was bound to increase, thus making him completely dependent on the "gato" who had recruited him.
59. The report goes on to say that an adult needs four days to fill a 70-cubic-metre coal truck. The worker receives US$70 per truck-load, while the same amount of coal is worth US$1,600 on the market. The "gatos" are responsible for weighing the coal and very often cheat by declaring a lower weight. A working day means over 12 hours in thick smoke. Because of the smoke and pollution there is a high rate of lung infection, and the intense heat causes inflammation of the eyes and loss of vision within a few years. The worker's wife and children also work in the same conditions to increase output; the children remove the coal from the ovens where they are exposed to considerable risk, and there are countless accidents with the shovels they use. The workers are housed some 30 metres from the ovens, there is smoke everywhere, there are no beds, and the workers and their family sleep on wooden planks.
60. As a follow-up to the mission the ILO office in Brasilia organized a seminar with CONTAG, CTP, INCRA and UNICEF to plan a multi-disciplinary and multi-organizational approach to the situation of rural workers and the indigenous population in this area. One of the questions raised concerned the situation of some 70,000 indigenous workers employed in the alcohol factories of Mato Grosso do Sul. They are recruited by a "cabezante", who acts as intermediary between the employer and the local FUNAI representative, and are transported to the factory site. These indigenous people are not paid directly; their wage first goes to the intermediary who uses it to pay for the cost of their food, tools, alcohol, etc.
D. The Committee's conclusions
61. In the light of Conventions Nos. 29 and 105 on forced labour, and after examining the allegations submitted by the complainant organization (extensively documented by information from the national trade unions CONTAG, CUT and AGITRA, the Pastoral Commission on Land (CPT), Brazilian and international non-governmental organizations such as Anti-Slavery International and Americas Watch, and by official inspection reports, documents from various public authorities and press articles), the Committee has reached the conclusion that the allegations that thousands of workers, including minors, in certain regions and types of enterprise, are subjected to forced labour by means of debt bondage are well founded and that this situation is in violation of Conventions Nos. 29 and 105 ratified by Brazil.
62. The Committee observes that, according to information communicated by the Government in response to the allegations, the existence of forced labour in Brazil has been recognized by several government bodies. A number of reports on the situation by national public bodies refer to the situation of thousands of workers, including minors, whose working conditions are described as "slave labour" in section 149 of Brazil's Penal Code.
63. The Committee also observes that the main topic discussed at several meetings organized by government bodies has been the question of forced labour. Fact-finding missions, one of which was sent to the coalyards of Mato Grosso do Sul with the participation of an official of the ILO Office in Brasilia, have been sent to investigate some of the situations that have been denounced; and committees have been set up to look into complaints, such as the Permanent Investigation and Inspection Committee on Working Conditions in Coalyards in Mato Grosso do Sul.
64. The Committee notes, however, that coordination between the public authorities involved in the question of forced labour is poor, as has been mentioned both by the complainant organization and by a number of government bodies.
65. The Committee observes that in its communications the Government has supplied abundant information on the situation, including reports on any inspections that have been made, on the action taken where a complaint has been verified and on efforts to combat and eliminate the practice of forced labour.
66. The Committee notes that section No. 149 of the Penal Code states that "no one may be placed in a situation analogous to that of slavery", on pain of two to eight years' imprisonment, and that section No. 207 prohibits the transfer of workers from one part of the national territory to another.
67. The Committee observes that the situations denounced under the general heading of slave labour are covered by sections Nos. 197, 203, 207 and 149 of Brazil's Penal Code, which deal with offences against freedom of labour, the rights enshrined in labour legislation, the transfer of workers from one part of the national territory to another and the placing of workers in a situation analogous to slavery.
68. The Committee further notes that, under articles Nos. 184 and 186 of the Constitution, rural buildings that do not fulfil their social function, inter alia the enforcement of labour relations, may be expropriated.
69. The Committee observes that the allegations that the proceedings initiated have been slow are well founded.
70. The Committee notes that, although the Government's response to the allegations shows that it has taken steps to combat forced labour, it does not show any evidence of compliance with Article 25 of Convention No. 29, which stipulates that "the illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and are strictly enforced". The Committee observes that the documentation sent by the complainant organization and by the Government suggest that in most of the cases on which the Government has reported the penalties have consisted of fines, and there is no information that allows the Committee to conclude that those penalties have been effective. In fact the report of the mission that investigated working conditions in the coalyards of Mato Grosso do Sul with the participation of a representative of the ILO Office in Brasilia, states that, in the opinion of the inspectors of the Permanent Inspection and Investigation Committee, the enterprises prefer to pay the fines which are less costly than complying with the law.
71. The Committee also observes that the few people who have been convicted of exacting forced labour have been intermediaries or small owners and leaseholders, while the owners of large haciendas or enterprises that use the "services" of enterprises or individual intermediaries for production activities that are conducted under conditions of forced labour and debt bondage go unpunished. The Committee has not been informed of the penalties that were imposed in the proceedings brought for violation of section 149 of the Penal Code.
72. The Committee observes, moreover, that the phenomenon of "tertiarization" favours the impunity of those who ultimately benefit most from the practice of forced labour.
73. The Committee observes that it was recognition of the fact that the inspection arrangements were not adequate for investigating complaints of forced labour which led to the adoption of a Directive on inspection procedures in rural areas, with a view to applying a national inspection policy and facilitating preventive and punitive measures to enforce labour legislation.
74. The Directive also aims to clarify what constitutes the crime of placing workers in a situation analogous to slavery as well as the respective competence of the various bodies involved in the complaints procedure.
75. The Committee draws attention to the fact that the Committee of Experts on the Application of Conventions and Recommendations has already commented on the application of Conventions Nos. 29 and 105 in Brazil in connection with similar situations to those referred to in the allegations of the complainant organization.
E. The Committee's recommendations
76. The Committee recommends that the Governing Body:
(a) approve the present report and, in particular, the conclusions set out in the paragraphs relating to the existence of forced labour and debt bondage and to the failure to apply effective penal sanctions strictly, in violation of Conventions Nos. 29 and 105 on forced labour, which have been ratified by Brazil;
(b) call on the Government of Brazil, bearing in mind the conclusions set out in paragraphs 61 to 75, to take the necessary steps;
(i) to reinforce the inspection system and to ensure the systematic and diligent investigation of complaints of forced labour;
(ii) to ensure the enforcement of national penal legislation against placing people in a situation analogous to slavery and against the illegal transfer of workers from one part of the national territory to another, and compliance with inspection arrangements in rural areas;
(iii) to ensure the rapidity of the proceedings initiated and the strict application of the penalties imposed;
(iv) to ensure coordination of the activities of the various government bodies, trade unions, Church organizations and civil bodies in the campaign for the complete elimination of forced labour;
(c) request the Government of Brazil to include, in the reports it supplies under article 22 of the Constitution on the application of Conventions Nos. 29 and 105 on forced labour, full information on the measures taken to comply with the recommendations contained in the foregoing paragraphs, so that the Committee of Experts on the Application of Conventions and Recommendations can follow-up the matter;
(d) declare the closure of the procedure initiated as a result of the representation in question.