Solicitud directa (CEACR) - Adopción: 2020, Publicación: 109ª reunión CIT (2021)

Convenio sobre las relaciones de trabajo en la administración pública, 1978 (núm. 151) - Brasil (Ratificación : 2010)

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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.]