Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

1. Further to its previous observation, the Committee notes the information contained in the Government's first two reports, the observations made by the Federation of Dock Workers, the Stevedores' Trade Union of Santos, Sao Vicente, Guarujâ and Cubatao, the Stevedores' Trade Union of Sao Sebastiao, the Trade Union of Stowers of Sao Sebastiao, the Inter-Occupational Trade Union of Casual Workers of the Itajaí Coast, the Boatmen of the Florianópolise de Santa Catarina Region, the National Federation of Stevedores and the National Federation of Foremen, Workers responsible for Loading and Unloading, Port Watchmen, Sectoral Workers and Stowers, and the Government's responses to these observations. Finally, the Committee notes the communication of the Trade Union of Stevedores of Santos, Sao Vicente, Guarujâ and Cubatao received in the ILO during the present session of the Committee and will examine the matters raised, along with any comments made by the Government, at its next session.

2. In a communication addressed to the ILO in March 1996, the Federation of Dock Workers states that the policy of the privatization of ports pursued by the Government since the adoption of Act No. 8630 of 23 February 1993 issuing provisions on the legal framework for the operation of organized ports and port installations, and its related decrees, has resulted in waves of summary dismissals of dockworkers, including, for example, the dismissal of 112 workers in the port of Vitoría.

3. In their respective communications addressed to the ILO in 1997, the Stevedores' Trade Union of Santos, Sao Vicente, Guarujâ and Cubatao, the Stevedores' Trade Union of Sao Sebastiao and the Trade Union of Stowers of Sao Sebastiao make a number of allegations. The unions state that the legislation adopted since 1993 with respect to dock work, under cover of modernizing the sector, has resulted in significant job loss for casual workers and has reduced the strength of their trade unions. The unions assert that by abolishing all the customs followed in the port sector, the new legislation violates the principles set out in the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The unions state that the Act has also made far-reaching changes in the system of the placement of dockworkers by requiring their registration on the registers maintained by the Manpower Management Agencies (OGMO) established in each port (section 18 of Act No. 8630). They alleged that this system has made the employment of unregistered workers very precarious and violates the provisions of this Convention, as well as those of the Termination of Employment Convention, 1982 (No. 158).

4. In their communications addressed to the ILO in May 1997, the Inter-Occupational Trade Union of Casual Workers of the Itajaí Coast, the Boatmen of the Florianópolise de Santa Catarina region, the National Federation of Stevedores and the National Federation of Foremen, Workers responsible for Loading and Unloading, Port Watchmen, Sectoral Workers and Stowers, state that Act No. 8630, and the decrees on port activities adopted thereafter, are as a whole in conformity with the spirit of the Convention in so far as these instruments provide, on the one hand, that each dockworker, without distinction on the grounds of the permanent or non-permanent nature of his employment relationship, shall be registered (section 18 of Act No. 8630) and, on the other hand, that priority for employment shall be accorded to registered dockworkers (section 26 of Act No. 8630). However, these trade unions report that employment of casual workers who are registered is more precarious despite the safeguards contained in the Act, such as section 26 above. Furthermore, they state that a number of private shipowners refuse to negotiate and conclude collective labour agreements on port workers as provided for in articles 19, 22 and 29 of Act No. 8630. Moreover, private shipowners refuse to have recourse to workers registered in the OGMOs of their respective ports and employ non-skilled workers, thereby jeopardizing safety and health standards, in violation of the requirements of the legislation and the Convention. Finally, these trade unions are strongly critical of the apathy of the Government in relation to the sometimes violent disputes caused by such practices.

5. In its first two reports, and in the comments made in reply to the allegations of the trade union organizations, the Government states that the adoption of Act No. 8630, which substantially modifies the legislation and customs followed in the port sector, forms part of an Integrated Programme for the Modernization of National Ports (PIMOP) designed to stimulate the activities of ports in the country. The Act provides a legal basis for the operation of ports and their installations, and for the administration of dockworkers. A Port Modernization Executive Group (GEMPO) was set up in 1995 to supervise the implementation of the above Programme. The Government indicates that although Act No. 8630 provides for a deregulation of industrial relations in the port sector (sections 19, 22 and 29), it nevertheless contains a number of provisions to protect the employment of workers in so far as possible (sections 26 and 70). The Government also states that it is endeavouring to address practical difficulties in the application of the Act through dialogue, and particularly the difficulties raised by trade union organizations. For this purpose, tripartite consultations and seminars, prepared with the technical assistance of the ILO and bringing together all the actors in the sector, were organized in 1996 and 1997. As a result, additional protection measures were adopted for casual workers. These measures include the implementation of an active policy of labour inspection in ports. Finally, a tripartite committee on the application of the Convention and the Dock Work Recommendation, 1973 (No. 145), was established in 1997 to bring the national legislation fully into conformity with these instruments.

6. The Committee takes due note of the explanations provided by the Government. The Committee notes that, in so far as the national legislation on ports and in particular Act No. 8630, Chapter IV, requires registration of dockworkers, both permanent and casual, to be maintained by OGMO, the legislation appears to accord with Articles 2 and 3 of the Convention. However, the Committee is concerned about its practical application. The Committee notes the particularly high number of complaints received from trade union organizations representing dockworkers relating to the difficulties of applying the Act in practice. It therefore requests the Government to indicate in its next report the manner in which the placement system administered by the OGMOs, created by the Act, assures minimum periods of employment or a minimum income to all dockworkers, in accordance with the requirements of Article 2, paragraph 2, of the Convention. Please also indicate the measures which have been taken in accordance with the requirements of Article 5 to encourage greater cooperation between port operators or their organizations and workers' organizations to overcome the alleged difficulties in concluding the collective labour agreements required by Act No. 8630 in sections 19, 22 and 29. The Government is also requested to indicate, in accordance with point V of the report form, the manner in which the Convention is applied in practice, by providing, for example, the available information on the number of dockworkers on the registers maintained by the OGMOs in certain organized ports and the changes in these numbers over the period covered by the report. Finally, the Government is requested to keep the ILO informed of the outcome of the work of the tripartite committee on the application of the Convention and Recommendation No. 145.