Observación (CEACR) - Adopción: 2004, Publicación: 93ª reunión CIT (2005)

The Committee notes the information provided by the Government in its report and the comments made jointly by the "Gaucha" Association of Labour Inspectors (AGITRA) and the Association of Labour Inspection Employees of Paraná (AAIT/PA) and those of the International Confederation of Free Trade Unions (ICFTU), which were forwarded to the Government on 30 March 2004 and 1 September 2004, respectively.

The Committee acknowledges that, for several years, the Government has been adopting a series of significant measures demonstrating its commitment to combat forced labour and which were noted in detail in its previous observation. Despite these measures, the phenomenon persists in many regions in which a high number of workers are subject to degrading conditions of work and debt bondage. Although the supervision undertaken by the Special Mobile Inspection Group have made it possible each year to liberate more workers from employers who exploit them, it does not nevertheless appear that the violations identified lead to the imposition of sufficiently dissuasive penalties against those who have imposed forced labour to be able to achieve the eradication of the phenomenon.

Legal framework

1. Section 149 of the Penal Code. The Committee notes that, following the adoption of Act No. 10.803 of 11 December 2003, section 149 of the Penal Code, which established a penalty of from two to eight years of imprisonment for the crime of imposing upon a person a condition similar to that of slavery, has been amended. It notes with interest that the concept of "imposing upon a person a condition similar to that of slavery" has now been developed, as section 149 now establishes conditions constituting the imposition of a condition similar to that of slavery, namely: subjecting a person to forced labour or to arduous working days or subjecting such person to degrading working conditions or restricting, in any manner whatsoever, her or his mobility by reason of a debt contracted in respect of the employer or her or his representative. Any persons who retain workers at the workplace either by preventing them from using means of locomotion, retaining their personal papers or property, or by maintaining manifest surveillance, are liable to the same prison sentence.

2. Draft amendment to article 243 of the Constitution (PEC No. 438/2001). The Committee noted previously that the measures envisaged under the National Plan of Action for the Elimination of Slave Labour, launched in March 2003 by the President of the Republic, included the adoption of the proposed amendment to article 243 of the Constitution providing for the expropriation without compensation of agricultural establishments in which the use of slave labour has been identified. The expropriated lands will be consigned to the agrarian reform and reserved as a priority for the persons who worked on them. The Government indicates that the proposal, approved by the Senate, is currently being examined by the Chamber of Deputies and it undertakes to provide political support for its rapid approval.

The ICFTU favours this proposal which, if it is adopted, will make it possible to impose a real penalty on those making use of slave labour and, by affording workers access to land, will prevent them from having to return to slave labour. This is very important as statistics show that 40 per cent of freed workers have already been freed more than once before. However, the ICFTU emphasizes that similar proposed amendments have been discussed by Congress since 1995, but have not been adopted.

The Committee hopes that, as it has undertaken to do, the Government will take all the measures in its power to accelerate the process of the adoption of this proposal which, when it is adopted, will make it possible to impose really dissuasive penalties on landowners having recourse to slave labour.

3. List of persons or entities which use or have used slave labour. In November 2003, a list of 52 names of individuals or entities convicted of having used slave labour was adopted with a view to preventing them from benefiting from public financing. Under the terms of Decree MTE No. 1234/2003 of 17 November 2003, a copy of which was provided by the Government, the list shall be communicated every six months to the various public institutions so that they can take measures in the areas within their competence. Furthermore, Decree No. 1150 of 18 November 2003 indicates that the Department for the Management of Financing for Regional Development of the Ministry of National Integration shall communicate this list to banks administering constitutional or regional financing funds so that no public credits are granted to the names included in the list. The Government adds that the Ministry of Finance and the Central Bank are seeking to extend this prohibition to private banks in relation to the resources controlled by the federal Government. It acknowledges that the issue of the granting of aid and credit to persons and entities which use slave labour is a grave problem, particularly in Amazonia, where several credit institutions make resources available for regional development.

The ICFTU expresses concern in this regard at the lack of an administrative follow-up mechanism to ensure that those named on the list do not benefit from public financing or incentives.

The Committee indicated previously that, in seeking to affect directly the financial interests of those who exploit slave labour, the adoption of this list marked an important step in combating forced labour. In this respect, it notes with interest that the list has been updated and now contains 49 names (Decree No. 540 of the Ministry of Labour and Employment, of 15 October 2004). In accordance with section 4 of this Decree, for two years following the inclusion of a name in the list, the labour inspectorate shall verify the conditions of work in the establishments concerned. If there is no repeat offence and if the fines and the debts to the workers have been acquitted, the name may be removed from the list. The Committee requests the Government to continue providing information on this subject, particularly with regard to the revision of the list, the extension to private banks of the prohibition on the granting of credits to the names appearing on the list and the manner in which compliance with this prohibition is enforced in practice.

Implementation

1. Prevention and awareness raising. Over the past two years, the Government has adopted a series of measures to combat slave labour, including the adoption in 2002 of the National Plan of Action for the Elimination of Slave Labour, the establishment of the National Commission for the Elimination of Slave Labour (CONATRAE) in March 2003, and the launching of the national campaign for the elimination of slave labour in September 2003. CONATRAE, composed of government bodies and non-governmental organizations, ensures that the country has a permanent and effective entity for the coordination of all the action to be taken in the context of the National Plan of Action. The Government also refers to the cooperation project between the ILO and the Government "Combating forced labour in Brazil" (2002-07). The objectives of this project include:

n  the reinforcement and coordination of the action undertaken by CONATRAE;

n  the development of national awareness-raising campaigns;

n  the establishment of a database containing data on forced labour from various sources so as to help the Government target and plan its action more effectively;

n  the reinforcement of the Special Mobile Inspection Group; and

n  the establishment of pilot programmes to assist freed workers.

The Committee notes with interest all of these actions, which bear witness to the Government’s commitment to combat slave labour, raise public awareness and carry out concerted action in this field. The Committee hopes that the Government will pursue this action and requests it to continue providing information on the measures taken to continue the implementation of the National Plan of Action for the Elimination of Slave Labour, the results achieved and the difficulties encountered.

2. Action by the labour inspectorate. The Committee noted previously the essential role played by the labour inspectorate in combating forced labour and emphasized that the action of the Special Mobile Inspection Group (GEFM) is an essential prerequisite, without which workers cannot be freed and those responsible convicted. While noting the measures already taken by the Government, it expressed the hope that it would continue to use all the means at its disposal to further strengthen the inspection services. The Government indicates that the GEFM intervenes without warning, based on the complaints received. Labour inspectors are accompanied by the federal police, who are responsible for their security and at the same time competent to undertake criminal investigations. The objective of these interventions is to free workers, obtain the payment of the amounts due to them and, when the operation is completed, to refer the case to the Office of the Federal Attorney-General where the situation amounts to the crime of imposing upon a person a condition similar to that of slavery or any other penal offence. In 2003, the GEFM was provided with 16 four-wheel drive vehicles, which are particularly suited to the inspections to be undertaken and, in 2004, a sixth team was established. Following the holding of a competition, 150 labour inspectors were selected and took up office in May 2004. They will be assigned as a priority to areas in which forced labour is concentrated. In general, the year 2003 saw the largest number of operations by the GEFM since its establishment in 1995. The same applies to the number of workers freed. A total of 196 establishments were inspected in the context of 66 operations, leading to the freeing of 4,879 workers.

The ICFTU recognizes that the increased number of workers freed demonstrates the effectiveness of the GEFM. However, it is concerned at the decline in the number of workers freed, as observed in the first half of 2004, which could indicate that the work of the GEFM is hampered by its lack of resources and by the climate of intimidation and impunity. Furthermore, the time elapsing between the lodging of a complaint and when the inspections are carried out has increased. According to the ICFTU, it is necessary to reinforce the GEFM both in terms of human resources and adequate vehicles to ensure rapid inspections in the most remote regions. The lack of resources of the labour inspectorate is also a matter of concern for AGITRA. Moreover, these two trade union organizations express concern at the climate of intimidation and violence affecting labour inspectors, judges, attorneys and all those combating slave labour. The murder of three labour inspectors and their driver on 28 January 2004 is an illustration of this climate. AGITRA considers that the phenomenon is all the more difficult to combat in view of the involvement of well-known persons. The ICFTU emphasizes the need for the Government to protect those engaged in combating slave labour and to ensure that all who make use of violence and intimidation are penalized and convicted.

The Committee notes all of this information and hopes that the Government will continue to provide detailed indications of the action taken by the GEFM and the resources made available to it by the Government, as well as on the number of operations carried out, the average time that elapses between the filing of a complaint and the inspection of the GEFM, and the number of workers freed. The Committee also expresses concern at the context of violence in which labour inspectors, attorneys, judges and, more generally, all those involved in combating slave labour, have to work. It notes that in August 2003, before the murder of the labour inspectors, in view of the many threats menacing their members, several institutions, including the Federal Human Rights Ombudsperson, the National Association of Labour Judges, the Office of the Labour Attorney, the Association of Attorneys of Brazil and the Pastoral Land Commission, issued a press release describing the situation and calling for appropriate measures to be taken. The press release was further pursued in the form of an appeal to the President of the Republic and the Minister of Justice for the Government take urgent measures to secure the life and safety of the persons engaged in the implementation of the National Plan of Action for the Elimination of Slave Labour. The Committee hopes that the Government will not fail to provide information on the measures adopted in this respect.

Imposition of effective penalties

1. Administrative sanctions. Considering that the effective imposition of penalties for violations of the labour legislation is an essential element in combating forced labour in so far as the combination of several such violations is indicative of certain forced labour situations, the Committee hopes that the Government will ensure that the fines inflicted for violations of the labour legislation are collected in practice so as to ensure the dissuasive nature of these penalties. The Government indicates that the Office of the Labour Attorney, through the regional labour attorneys, has taken various types of action to penalize those making use of slave labour and that 439 investigations are currently being undertaken. In this respect, the ICFTU and AGITRA express the fear that the fines are too low to be dissuasive and that many fines are not paid. The ICFTU regrets the absence of official data on the amounts of the fines imposed and the number of fines collected. The Committee notes this information. It notes several decisions by regional labour tribunals which, in addition to requiring the payment of wage arrears and other social contributions, have convicted those accused to fines and the payment of compensation, particularly for collective social prejudice. It would be grateful if the Government would provide full particulars on the decisions handed down by labour tribunals and on the difficulties encountered in collecting the fines that are imposed.

2. Penal sanctions. For many years, the Committee has been requesting the Government to provide information on the number of cases of forced labour forwarded by the inspection services of the Ministry of Labour to the Office of the Federal Attorney-General, the manner in which these cases are followed up, and particularly the percentage of cases which give rise to criminal proceedings in relation to the total number of complaints received by the inspection services, and the number of convictions under the relevant penal provisions, and particularly section 149 of the Penal Code. The Government indicates in its report that, between February 2003 and May 2004, the Attorney-General of the Republic initiated 633 administrative proceedings to verify allegations of slave labour. In this respect, the Committee notes, from the Internet site of the Attorney-General of the Republic (http://www.pgr.mpf.gov.br/pgr/pfdc/pfdc.html), a list of cases in which the competent jurisdiction was requested to receive a complaint (denúncia) with a view to initiating criminal proceedings, particularly under section 149 of the Penal Code. Despite the absence of information from the Government on the number of convictions under section 149, the Committee has been able to note with interest that such convictions have been imposed (see, in particular, Ruling No. 2001.04.01.045970-8/SC of the federal regional tribunal of the fourth region confirming on appeal a conviction to a sentence of imprisonment of two years and eight months for the offence set out in section 149 of the Penal Code).

The Committee therefore hopes that in its next report the Government will provide more complete information on current proceedings, both administrative proceedings undertaken by the Attorney-General of the Republic to verify the facts, to which the Government referred in its report, the action taken on complaints forwarded by the Office of the Attorney-General with a view to the initiation of criminal proceedings and the final rulings by the respective courts. The Committee recalls in this respect that, in accordance with Article 25 of the Convention, the Government is under the obligation to ensure that the penal sanctions imposed by the law are really adequate and are strictly enforced.

With reference to its previous comments, the Committee would be grateful to be informed whether the problem of the determination of the competent jurisdiction (federal jurisdictions or those of the states) to judge the crime of imposing upon a person a condition similar to that of slavery (section 149 of the Penal Code) has been resolved and whether a final decision has been issued on this matter.