Informe provisional - Informe núm. 116, 1970

1. 153. The Committee has already made nine reports on this case to the Governing Body, all of which have been approved by the latter.
2. 154. On the last occasion when the Committee examined the case, at its May 1969 Session, it submitted to the Governing Body, in paragraphs 58-88 of its 112th Report, its final conclusions on three series of allegations which had remained outstanding.
3. 155. Nevertheless, in a communication dated 22 May 1969, the World Federation of Trade Unions (WFTU) presented fresh allegations. The text of this communication was passed on to the Government, which sent its observations on the matter in a communication dated 12 November 1969.
4. 156. Brazil has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 157. The allegations now presented by the WFTU are connected with other former allegations already examined in this case in respect of strikes, collective bargaining and the election of trade union leaders. The Committee has already submitted to the Governing Body its conclusions on these previous allegations but the WFTU states that " the situation in Brazil in the early months of 1969 " differed from that prevailing at the time when it lodged its complaint in 1966. The WFTU states that there has been a further outbreak of repression against the trade union organisations.
2. 158. In various earlier cases the Committee considered that it could not reopen a case which it had already examined in substance and on which it had submitted final recommendations to the Governing Body, except where new evidence was produced and brought to its notice)
3. 159. In the present case the Committee is examining the new evidence submitted by the complainants in respect of which the Government has furnished its observations.
   • Allegations concerning Restrictions on the Exercise of the Right to Strike
4. 160. In their communication of 22 May 1969, the complainants state that " the new wording of the National Security Act " puts strikes into the category of acts against the security of the State, which means that workers who have recourse to a strike can be accused of an offence which comes under the jurisdiction of a military court.
5. 161. In its observations of 12 November 1969, the Government points out that the right to strike is embodied in article 158, clause 21, of the Federal Constitution, with the exception, as provided in article 157, paragraph 7, of the ban on strikes in the public services and in essential activities, as defined by law. The Government states that restrictions of this type appear in the legislation of many countries and it goes on to quote the text of various sections of Act No. 4330, of 1964, whereby the above-mentioned Constitutional right is regulated.
6. 162. The Government refers to a statement made in 1965 by the Ministry of Labour and to certain provisions of sections 511 and 521 of the Consolidation of Labour Laws in respect of the lawful purposes and conditions for the operation of industrial associations. It goes on to add: " It follows that a Brazilian industrial association may represent occupational or economic interests but never party political, philosophical or religious interests. In consequence the autonomy of an industrial association has to be exercised within the framework of the law, which sets the bounds beyond which an industrial association may not go if it is to keep within its terms of reference and abide by its aims. This means that freedom of association, or any other freedom accorded to groups or citizens, must not be confused with sovereignty or with anarchy, and must not be used as a pretext for infringing the rights of others, whether they be of an individual, of the community or of the Nation itself." The Government quotes the opinions of various writers on different aspects of relations between industrial associations or trade unions and the State and on the subordination of group and individual interests to the general good.
7. 163. In another paragraph of its observations, the Government makes the following statements. As regards national security, the measures adopted by the Government-which alone was competent-were of a general nature and applied to all Brazilians without exception. These were domestic measures which might be taken by any country. Far from impairing individual freedoms, they protect them. As regards industrial associations, Legislative Decree No. 314 of 13 March 1967 provides in section 32 that any person promoting a strike or lockout resulting in the paralysis of public services or essential utilities, with a view to bringing pressure to bear on the authorities of the Republic, shall be liable to a penalty of from two to six years' imprisonment.
8. 164. The Committee recalls that amongst the allegations connected with the right to strike which it has already examined in this case, and on which it has previously submitted its conclusions to the Governing Body, were allegations made by the WFTU concerning the threat to workers who went on strike of being summoned before military courts.
9. 165. At its February 1968 Session, the Committee pointed out that, according to the Government's statement (in a communication dated 5 January 1968), the right to strike of Brazilian workers is guaranteed by the Constitution and regulated by Act No. 4330 of 1964, " which does not set up any military court to repress strikes or judge those engaging in them ". The Government had stated that offences connected with strikes are judged by ordinary penal courts. At the same session the Committee referred to other statements made by the Government to the effect that military courts form part of the Brazilian judiciary; to the effect that penal sanctions apply only in the event of abuses in the exercise of the right to strike such as exceed the limits of labour-management relations and affect social order; and to the effect that other kinds of strikes may include sabotage, or activities such as may constitute an attack on national security. In conclusion, taking into account the formal denial of the Government and the fact that the complainants spoke only of the " threats " to which the said workers were exposed, and not of the actual appearance of the said workers before military courts, the Committee considered that " sufficient evidence of infringement of trade union rights ... had not been adduced " and recommended the Governing Body to decide that this aspect of the case called for no further examination.
10. 166. In the new complaint from the WFTU which the Committee is examining, the complainants refer to the provision of a " newly worded " National Security Act. The Government confines itself to indicating the penalty which, under the Legislative Decree of 1967, is applicable to any person who promotes a strike which results in the paralysis of public services or essential activities, for the purpose of bringing pressure to bear on the authorities of the Republic.
11. 167. The Committee has always applied the principle that allegations relating to the right to strike are within its competence in so far as concerns the exercise of trade union rights. It has pointed out in many earlier cases that the right of workers and their organisations to strike as a legitimate means of defending their occupational interests is generally recognised. Nevertheless, in various cases the Committee has declined to examine allegations concerning strikes that were not of an occupational character or which were intended to coerce the government on a political question.
12. 168. Assuming that the penalty mentioned by the Government or similar penalties apply or may be applied to any strike declared solely in order to promote or defend the workers' occupational interests, such a situation would be contrary to the generally recognised principle referred to in the preceding paragraph. The Committee can only observe in this respect that this is not proved by the scant evidence contained in the allegations in question or in the text of section 32 of the Legislative Decree of 1967 referred to by the Government.
13. 169. Subject to the considerations expressed in paragraph 168 above, the Committee recommends the Governing Body to decide that this aspect of the case calls for no further examination on its part.
    • Allegations concerning Restrictions on the Right to Bargain Collectively
14. 170. The WFTU alleges that the subordination of the judiciary to the executive as a result of the suspension of the safeguards of judges' independence under Institutional Act No. 5, has turned the labour courts into bodies for supervising the application of the wage ceilings fixed by the Government. It adds that, contrary to a statement previously made to the Committee on Freedom of Association, referred to in paragraph 133 of the 103rd Report, serious restrictions are placed on the right to negotiate in Brazil. The WFTU gives as an example the case of workers in the sugar and textile industries of Sao Paolo (December 1968) who had obtained a 30 per cent wage rise, only to have it reduced to 25 per cent by the Higher Labour Court (TST) because the initial percentage exceeded the ceiling fixed by the Government.
15. 171. The Government states that Act No. 5 is in no way connected with wage policy or labour courts. The policy concerning wage readjustments is defined in Act No. 5451 of 1968, which is designed to keep new wages at the level of average real wages over the past twenty-four months, plus the prescribed increment to offset inflation and an additional sum based on the rise in productivity. The Government has also ordered the review of previous wages adjustments.
16. 172. Furthermore the Government states that collective agreements are reached between industrial associations in the economic and occupational categories whenever, under the terms of the law, it is in their mutual interest to establish new conditions of work for the entire category represented. Collective contracts, on the other hand, are signed between the trade union for an occupational category and an undertaking, with a view to establishing new conditions valid only within that undertaking and for a specified period not exceeding two years. Brazil is one of the first States to have embodied in one legislative text the advantages conferred upon workers. This explains the restrictions upon the right to conclude collective agreements, which are used only in very special cases. The Government says, nevertheless, that collective contracts exist in many branches of activity, particularly in commerce.
17. 173. The Government states that a reduction may be made in a wage increase only when, under the procedure laid down for labour justice, the court of first instance has awarded, without any justification, a percentage increase higher than the ceiling fixed by the official body responsible for orienting the Government's wage policy. Brazil has had a positive policy in this respect for more than twenty years: not only must a conciliation phase take place before a wage increase is submitted for consideration to the judicial authorities concerned with labour questions, but the increase must be tied to the indices showing the rise in consumer prices (rise in the cost of living) as compiled by a specialised body after a survey. There is nothing to prevent workers and employers, through their representative organisations, from agreeing upon increases in excess of the rate fixed, provided that the agreement is approved by the judicial authorities concerned with labour questions or recognised by the official bodies and that the increases will not lead to a rise in the prices of goods or services.
18. 174. The Committee notes that the new allegations, based on concrete examples, made by the WFTU refer to the ceiling imposed on wage increases that may be granted under collective contracts. These allegations, and the Government's observations, reveal that trade unions can and do bargain with employers over wages, and also that the law provides that wage increases may not exceed the ceilings established by the Government; according to the latter this system has been applied in the country for many years. The Government also states that in determining wage adjustments, account is taken of factors such as the cost of living, inflation, productivity increases and the possible impact on prices.
19. 175. It should be pointed out, firstly that the restriction thus imposed on collective bargaining and the powers consequently conferred on the government authorities and labour courts appear to apply only to the provisions relating to wages, and that the notions of " approval by the labour courts " and " recognition by official bodies " do not seem to apply to the other matters covered by the contract. The former text of section 618 of the Consolidation of Labour Laws seemed to establish a requirement equivalent to previous authorisation for a collective contract to come into force in its entirety, since it was required to be approved by the competent authority and since, as pointed out by one writer, the Minister could refuse his approval, thus leaving the contract without legal validity. The same writer points out that this problem was overcome when Legislative Decree No. 229 of 28 February 1967 came into force because since then, for the contract to become valid, the parties have had to send a copy to the Ministry of Labour and the instrument has come into force three days after being deposited with the Ministry. The new wording of Title VI of the Consolidation of Labour Laws (section 614) embodies this amendment of 1967 and provides that the purpose of depositing contracts is " for registration and filing ".
20. 176. A study of section 623 of the Consolidation of Labour Laws reveals that any provision in a collective agreement or collective contract which directly or indirectly conflicts with any ban or rule forming part of the Government's economic and financial policy, or the wage policy currently in force, shall be null and void and not be capable of enforcement before any public authority or government department; the fact that the provision is null and void shall be declared, either automatically or on application by any party concerned, by the Minister of Labour and Social Welfare or by a labour court in proceedings brought before it. Section 624 provides that the validity of any clause increasing or adjusting wage rates shall, if it implies any increase in the prices or rates controlled by any public authority or government department, be subject to prior consideration by such authority or department and to an explicit statement on its part as regards the possibility of increasing the prices or rates concerned.
21. 177. The Committee considers it necessary to recall that, under the terms of Article 4 of Convention No. 98, ratified by Brazil, " measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements ". In various cases in the past the Committee has emphasised that the right of workers' organisations to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and that the public authorities should refrain from any interference which might restrict the trade unions' right to seek, through collective bargaining or other lawful means, to improve the living and working conditions of those whom the trade unions represent, or impede the lawful exercise of this right.
22. 178. In the present case it may be understood from the Government's observations that, when justifiable grounds exist, agreements between organisations representing workers and employers respectively may, in certain circumstances, provide for increases in excess of the rates fixed.
23. 179. In these circumstances, with a view to continuing its examination of this aspect of the case in full knowledge of the facts, the Committee recommends the Governing Body to request the Government to supply further information on the number of collective contracts that have come into force without changes in the clauses concerning wages, and the number of cases in which the Minister of Labour and Social Welfare or the labour courts have declared such clauses to be null and void, or ordered their amendment, indicating the grounds on which such decisions have been based.
    • Allegations concerning Restrictions on the Right to Elect Trade Union Representatives Freely
24. 180. The WFTU refers to its previous allegations, already examined by the Committee, concerning the ideological attestation said to be required of trade union leaders. At that time-states the complainant organisation-the Director-General of the National Labour Department categorically denied such allegations, which prevented the Committee on Freedom of Association from making a more thorough examination of this question. The WFTU repeats that trade unions do not have the right to elect their representatives freely. More specifically, it states that since Ministerial Instruction No. 3045 was issued by the Ministry of Labour and Social Welfare on 14 February 1969, no doubt has remained as to the requirement of an ideological attestation in order to be elected to posts of trade union leadership or even to retain trade union office. The leaders of many organisations, who had been elected and were carrying out their functions, have been deprived by the authorities of their rights and accused of not being fit to guarantee discipline within the trade union organisations in accordance with the social order in force.
25. 181. In the introductory part of the Ministerial Instruction quoted by the complainants, it is stated, among other considerations, that Institutional Act No. 5 of 13 December 1968 provides for the adoption of measures to ensure order, security, peace and political and social harmony within the country; that trade union organisations play an important part in the pursuit of these objectives since, by their very nature, they co-operate with the authorities; that for this reason and by virtue of their ultimate objective, trade union organisations should have different leaders and representatives from those who, although elected and holding office, do not fulfil the necessary conditions to guarantee internal discipline in accordance with the social order in force and that it is the duty of the Ministry of Labour and Social Welfare to ensure that law and order are maintained so that a satisfactory solution may be found to the problems in the field of trade union activities. The operative part contains a decision to relieve of their functions the regular and substitute members of the bureau, and of the managing and representative bodies of twenty trade unions. In the case of three of these unions (Union of Petroleum Extraction Workers, State of Bahia; the Union of Building and Furnishing Workers of Maringá, State of Paraná; and the Union of Workers in the Metallurgical, Metalworking and Electrical Engineering Industries of Maringá, State of Paraná), the Ministerial Instruction does not name the persons relieved of their functions; as regards the other unions, the names of one or more persons are given.
26. 182. In its observations, the Government gives a comprehensive explanation, of a general nature, in which it states that there are no restrictions on trade union elections and that the removal from office of trade union leaders or of a union executive by means of government intervention has been provided for by law for more than twenty-five years. The Government adds that this occurs when such leaders, taking advantage of their position, mismanage the union funds or commit acts constituting a threat to the security of the nation or of any group, thus misusing the prerogatives conferred upon them by the Constitution of the country or by the Consolidation of Labour Laws. The Government mentions various provisions of national legislation concerning the exercise of the right to associate, freedom of expression, etc., and restrictions on the exercise thereof. It also quotes a number of judgments pronounced by Brazilian labour courts, stating that these courts " have repeatedly proclaimed to be Constitutional the provisions of the Consolidation relating to the organisation and functioning of industrial associations, as well as insisting upon the legitimacy of state intervention as practised by the Ministry of Labour and Social Welfare whenever such associations have disregarded or infringed the provisions of the Constitution or of the law by which they are bound ".
27. 183. As regards the Ministerial Instruction of 14 February 1969, the Government states that the preamble of the Instruction itself gives the reasons for the removal from office of " an insignificant number " of trade union leaders; furthermore there was no intervention, but replacement by lawfully appointed substitutes, in view of the fact that it is the duty of the Brazilian authorities to ensure that calm, social peace and order are maintained in industrial associations, so that the problems of the working class can be tackled and settled. The goal of the agitators and subversive elements is exactly the opposite: to prevent these problems from being settled in order to undermine the foundations of social peace in Brazil, so as to discredit the public authorities and create unrest throughout the country.
28. 184. According to the Government, the accusation relating to an ideological attestation is unfounded. The provisions of the relevant text of ordinary legislation, Ministerial Instruction No. 40 of 21 January 1965, are as follows so far as the requirements to be met by candidates are concerned:
    • Section 11. An application for the registration of a list of candidates may be made by any of the candidates on the said list; it must be submitted in triplicate to the president in office.
    • Paragraph 1. The application must be accompanied by the following information and documents with respect to each candidate:
      • (a) full name, parentage, state of origin (in Brazil), marital status and address;
      • (b) social security registration number;
      • (c) name of the establishment or undertaking in which he carries out his occupation or activity, if he is an employee or an employer;
      • (d) documentary evidence as to the length of time he has been carrying on his activity or occupation and information as to the length of time he has been a member of the industrial association in question, calculated in both cases up to the date of the poll;
      • (e) a handwritten statement by each of the persons on the list (the handwriting and the signatures being certified to be theirs) promising to observe faithfully the Federal Constitution and the laws of the country and to respect the duly constituted authorities and comply with their decisions;
      • (f) an attestation that they are of good previous character and entitled to full political rights.
    • 185. The Committee has already examined, in previous stages of this same case, the question of the principle concerning government control of trade union organisations. At its February 1965 Session, after examining certain allegations concerning the control of a number of trade union organisations' and the Government's observations on a return to a normal situation, the Committee recommended the Governing Body, inter alia, to draw the Government's attention to the fact that the placing of trade union organisations under control entails a serious danger of restricting the rights of workers' organisations to elect their representatives and to organise their administration and activities. In these circumstances, the Committee does not consider it necessary to re-examine this question of principle.
29. 186. With regard to the allegations concerning the Ministerial Instruction of 14 February 1969, the Government does not dispute the authenticity of the text supplied by the complain ants and apparently confirms it. It appears, from the Government's observations, that the removal from office of trade union leaders, which affected twenty trade unions, did not involve the procedure of government control referred to previously by the Committee, but, according to the Government, resulted from the duty of the authorities to maintain calm, social peace and order within industrial associations.
30. 187. In other previous cases, the Committee has expressed the view that removal from trade union office by an administrative authority is a procedure which might give rise to abuses or to infringement of the generally recognised right of organisations to elect their representatives in full freedom and to organise their administration and activities. This principle is embodied in Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), which also provides that the public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof. Moreover, in connection with the control of the internal acts of a trade union, if such acts infringe legislative provisions or trade union rules, the Committee has considered that " it is of maximum importance that, in order to guarantee an impartial and objective procedure, control should be exercised by the relevant judicial authority".
31. 188. In the present case the trade union leaders were removed from office not by the decision of members of the trade unions concerned but by the administrative authority and not, it would seem, because of infringement of specific provisions of the trade union rules or of the law, but because the said administrative authorities had considered these trade union leaders unsuitable to maintain " discipline " in their unions. Measures of this kind appear obviously incompatible with the principle that trade union organisations have the right to elect their representatives freely and to organise their administration and activities.
32. 189. Furthermore, as regards the allegations concerning " ideological attestations ", the Committee recalls that at its February 1968 Session 3, when examining certain allegations according to which an " ideological attestation " was required from candidates for posts as trade union officials, the Committee had before it observations supplied by the Government according to which the requirement of an ideological attestation had been abolished by Brazilian legislation. In these circumstances the Committee considered that there would be no point in pursuing its examination of this aspect of the case.
33. 190. In its observations, the Government now refers to Ministerial Instruction No. 40 of 21 January 1965, whose section 11, clause (e), requires candidates to make a written statement promising to observe faithfully the Constitution and the law, and to respect the constituted authorities and comply with their decisions. Furthermore, under clause (f) of the same section, candidates are required to supply an attestation that they are of good previous character and entitled to full political rights.
34. 191. The Committee has always considered that it was not competent to examine allegations of a purely political nature, but it has also considered that it should examine measures of a political nature taken by governments in so far as they may indirectly affect the exercise of trade union rights. In the case of the regulations quoted by the Government, which are expressly applied to the election of trade union leaders, it is evident that a person who has been deprived of his political rights cannot be elected to trade union office. Consequently the Committee considers that it would be desirable to know the reasons for which, in accordance with the legislation of the country, persons may be deprived of their political rights and whether there is any possibility of appeal against measures of this kind.
35. 192. In these circumstances, the Committee recommends the Governing Body:
    • (a) to draw the Government's attention to the importance of the generally recognised principle that workers' organisations should have the right to elect their representatives freely and to organise their administration and activities, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof;
    • (b) to draw the attention of the Government also to the fact that when the internal acts of trade unions infringe legislative provisions or trade union rules, it is of the utmost importance that, in order to guarantee an impartial and objective procedure, control should be exercised by the relevant judicial authority;
    • (c) to request the Government to supply the supplementary information referred to in paragraph 191 above.