Informe definitivo - Informe núm. 202, Junio 1980

1. 155. The Committee examined this case earlier, at its November 1979 Session when it submitted an interim report to the Governing Body. Since then, the International Metalworkers' Federation (IMF) sent a telegram to the ILO on 7 November 1979. For its part, the Government sent observations in communications dated 25 January, 26 February and 21 March 1980.
2. 156. The complaints presented in the present case mainly concern a strike called by the metalworkers' unions of the Sao Paulo region in March 1979. New complaints have been received recently regarding the events which took place in April and May 1980 in the same sector (Case No. 958). These complaints have been sent to the Government for its observations and the Committee intends to examine this case at its next session.
3. 157. 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. Previous examination of the case

1. 158. The dispute which took place in the metallurgy sector of Sao Paulo in March 1979 originated in a disagreement which arose during collective bargaining. It would appear that an earlier wage adjustment had been deducted from wage increases granted during negotiations in 1979. After the strike began the dispute was taken to the labour court, which gave a decision granting a wage increase limited to that authorised by the Government and declared the strike illegal under the legislative provisions regulating the right to strike. The strike nevertheless continued, and the unions which had organised it were placed under control and their leaders suspended. Although they had been removed from office, the leaders accepted a 45-day truce and an agreement in the hope of finding an amicable solution to the dispute, on the understanding that no striker would be dismissed. Despite the agreement, the Latin American Central of Workers (CLAT) mentioned the dismissal of 450 workers.
2. 159. WCL also stated that Brazilian legislation contained provisions which denied freedom of expression and association and the effective recognition of the right to bargain. According to WCL, the trade unions were subject to state control as regards the drafting of their rules, the election or removal from office of their officials, their financial management, trade union meetings and their programmes of action (prohibition of action contrary to the financial policy of the Government). In addition, WCL considered that there was ample proof of repeated violations of Convention No. 98, which Brazil had ratified. Thus, section 623 of the Consolidation of Labour Laws permitted the suspension of any provision of a collective agreement which was in direct or indirect contradiction of the Government's wages policy. Furthermore, section 8 of Act No. 5584 authorised the Government to appeal against judgements of the labour court, with suspensory effect, in the event that the percentage of wage increase agreed upon exceeded that laid down by the executive.
3. 160. At its November 1979 Session, on the recommendation of the Committee, the Governing Body, referring to the Brazilian legislation respecting the right to strike, stressed that the conditions that must be fulfilled in order to render a strike lawful must not be such as to place a substantial limitation on the means of action open to trade union organisations. The Governing Body also requested the Government to send its observations on the allegations concerning the dismissals of workers following the strike, and on the general allegations concerning the legislative provisions relating to the control exercised by the authorities on the operation of trade unions and restrictions on the right to bargain collectively.

B. New developments

• (a) New complaint
  161. 161 In its telegram of 7 November 1979 the IMF refers to the death of the metalworkers' union member, Mr. Santos Dias da Silva, who was killed by the police forces when they intervened in a strike at the Sylvania factory.
• (b) Replies of the Government
  162. 162 In its communication of 25 January 1980 the Governments sends its observations on the complaint of the IMF. It explains that a strike had been called in the metallurgy sector of Sao Paulo, at a meeting which was attended by 4,000 of the 350,000 workers in this branch of activity. Because this decision had been taken only by an active minority of workers, the strikers found themselves in difficulties. They then organised strike pickets, which used violence to prevent the vast majority of wage earners from entering the workplace and forced those who were already inside the factories to withdraw at once. The Government adds that these pickets obeyed groups which were unconnected with the metallurgy workers. The strike was declared illegal by the courts in conformity with national law.
  163. 163 More specifically, as regards the death of Mr. Santos Dias da Silva, the Government supplies an excerpt from the inquiry report. Strike pickets at the entrance to the Sylvania factory are alleged to have refused to obey the forces of order, who ordered them to disperse, and are then said to have attacked them. According to the Secretary for Public Safety of Sao Paulo, no orders were given to the police to open fire. Nevertheless, Mr. Santos Dias da Silva was hit by a bullet during the affray, and a policeman was seriously injured. The case was brought before the courts.
  164. 164 In conclusion, the Government states that a number of undertakings took advantage of the fact that the strike had been declared illegal to dismiss an unspecified number of workers.
  165. 165 In its further communication of 26 February 1980, the Government recalls that it recommended employers to refrain from reprisals such as dismissals. There had been a gentlemen's agreement to this effect between the ministry and the representatives of the economic branch. The Ministry of Labour has made every effort to ensure that this agreement is kept, and has requested the National Labour Delegation of Sao Paulo to have it applied through its labour inspectors, using pressure if necessary.
  166. 166 The Government also mentions that most of the dismissals were the result of the employment structure in the metallurgy sector in the ABC complex, where 10 per cent of the 180,000 workers normally change jobs each year; furthermore, a number of workers are said to have been dismissed with notice for reasons unconnected with the strike. The communication of 21 March 1980 mentions two inquiries made by the federal public service at the request of the administrators of the Union of Workers in the Metallurgical, Engineering and Electrical Equipment Industries of Sao Caetano do Sul and the union of Sao Bernardo do Campo and Diadema. According to the findings of these surveys, which were submitted on 29 March 1979, only four workers in the sector under inspection had been dismissed because of the strike. In this connection the Committee notes that the lists supplied by the administrators of the union, which were attached to the Government's reply, mentioned about 220 dismissals on unjustified grounds, or dismissals for which no grounds were mentioned.
  167. 167 As regards the legislative provisions governing the control of the operations of the Brazilian trade union movement, the Government, basing itself on the relevant Brazilian doctrine, explains that a trade union, which is a body for co-operation with the State, may not exist unless its activities are facilitated or restrained by the latter. Since the modern State is decidedly interventionist, the fact that a trade union is independent may not prevent the organs of the State from exerting administrative or legal control over it to prevent it from straying from the path of legality or to guide it back on to a lawful course. The Government, which considers that current Brazilian legislation and the provisions of Convention No. 87 are incompatible, refers to a legal opinion, given in 1957, according to which trade union unity and the legal representation of an entire occupational category are the consequences of historical and sociological phenomena and social and economic factors deriving from the request of the trade union organisations themselves. On the basis of the latter affirmation, the Government considers that any amendments to current legislation will have to be confined to matters of detail.
  168. 168 As regards restrictions on the right to bargain collectively, the Government is of the opinion that, since the entry into force of Legislative Decree No. 229 of 28 February 1967, the State no longer exercises direct control over the content of collective agreements, which no longer need to be approved by the administration. The Government explains that the restrictive provisions of sections 623 and 624 of the Consolidation of Labour Laws, referred to by the complainants, have the effect of ensuring the implementation of the Government's economic policy by defining the competence of the labour courts in the matter of standard setting. The purpose of these provisions is to counter inflation since, in the Government's view, excessive wage adjustments are prejudicial to wage earners. In addition, the Government mentions Act No. 6708 of 30 October 1979 respecting the automatic adjustment of wages, which, it claims, ensures greater flexibility in the negotiation of collective agreements (sections 10 and 11, subsection 2).

C. Conclusions of the Committee

1. 169. The Committee observes that the questions raised in the present case deal with three sets of allegations: dismissals of workers following the strike in the Sao Paulo metallurgical sector; the death of a trade unionist during clashes with the police; and the restrictive provisions of Brazilian legislation as regards freedom of association and collective bargaining.
   • (a) Dismissals of workers
2. 170. In connection with the dismissals, the Committee must note that there is a substantial divergence between the version of the events given by the Government and that given by the complainants. It appears, however, from the information available that at least some of these dismissals followed prosecutions in connection with the strike, which had been declared illegal by the labour court. The Committee notes that the Government has stated in this connection that strike pickets used violence to prevent workers from entering the workplace and that a number of undertakings took advantage of the fact that the strike had been declared illegal to dismiss an unspecified number of workers. The Committee has also noted the details given by the Government following inquiries made at its request, from which it would appear that only four workers had been dismissed because of the strike. The Committee nevertheless recalls that the complainants allege that there had been a wave of collective dismissals affecting about 450 workers.
3. 171. The Committee is not in possession of sufficient information to enable it to formulate a precise opinion on the extent of the wave of dismissals. It nevertheless recalls that in earlier cases, where it has examined allegations of dismissals following strikes, it has considered that such measures involve serious risk of abuse and serious threats to freedom of association. It has held the view that, on such occasions, the development of labour relations could be impaired as the result of an inflexible attitude being adopted in the application of excessively severe sanctions to workers who participate in strike action. Consequently, and whatever the extent of the dismissals, it would seem desirable for the Government, in a spirit of reconciliation, to intervene with the managements of the undertakings concerned to obtain the reinstatement of the dismissed workers, in view of the fact that the strike must remain one of the essential means available to workers to enable them to press their claims.
   • (b) Death of a trade unionist
4. 172. As concerns this aspect of the case, the Committee recalls that in earlier cases it has considered that the intervention by security forces in strike activities should be limited to the maintenance of public order. It notes that an inquiry was made into the circumstances of this death and that the case came before the courts. The Committee can only deplore the climate of unrest which led to the violent death of a striking worker, and expresses the hope that the legal proceedings which have been instituted will enable responsibilities to be determined. The Committee would like to be kept informed of the results of the judicial proceedings underway.
   • (c) Allegations relating to trade union legislation
5. 173. As regards state control of trade union operation, the Committee observes that Legislative Decree No. 5452 of 1943 respecting the Consolidation of Labour Laws, as amended, is highly interventionist in character. There is a requirement that the rules of trade unions must contain a statement that the union will act as a body for co-operation with the public authorities for the subordination of economic and occupational interests to the interests of the State (section 518); the election of trade union officials is subject to the approval of the Minister of Labour (section 532); the Minister issues instructions governing the electoral procedure (section 531, subsection 4). the Minister may also, in the event of a dispute or any occurrence which disturbs the operation of an industrial association, intervene through a representative with powers to manage the association temporarily (section 528, and section 553, note 2, as amended by Act No. 5584 of 26 June 1970); the property and income of an industrial association may not be transferred except with the authorisation of the Minister (section 549, sole subsection); finally, the programme of action implies the subordination of the economic and occupational interests of the trade unions to the interests of the State (section 518, subsection 1(c)).
6. 174. The Committee notes that the Government refers in its observations to the need to revise certain provisions, but that the only amendments that may be expected relate to matters of detail in this connection the Committee remarks that the draft Bill for the revision of the Consolidation of Labour Laws, published in the Official Gazette of 2 May 1979, no longer appears to assign trade unions the specific role of a body for co-operation with the public authorities in the sense of subordinating their interests to the interests of the State. The Committee recalls, as it has done in other circumstances, that legislation which imposes a strict control by the State over the drawing up of rules, the election and removal from office of trade union officials, financial management and programmes of action is incompatible with the principles of freedom of association, according to which workers' organisations should have the right to organise their administration and activities without any interference on the part of the public authorities which would restrict this right or impede the lawful exercise thereof. The Committee accordingly hopes that it will be possible to take other measures, before the draft Bill is finally adopted, to bring the legislation into conformity with the principles of freedom of association.
   • (d) Allegations relating to restrictions on collective bargaining
7. 175. As regards this aspect of the case the Committee remarks that these restrictions were introduced into the legislation in 1967 and 1970. In this connection the Committee refers to the comments which the Committee of Experts on the Application of Conventions and Recommendations has made for a number of years regarding the application of Convention No. 98 by Brazil. The comments refer in particular to sections 623 (as amended by Legislative Decree No. 229 of 28 February 1967) and 624 of the Consolidation of Labour Laws and section 8 of Act No. 5584 of 26 June 1970. These provisions, as mentioned by the complainants, establish the nullity of any clause of a collective agreement which is in direct or indirect contradiction with the Government's wages policy, and authorise the Government to appeal against judgements of the labour courts, with suspensory effect, in the event that the percentage of wage increase agreed upon exceeds that laid down by the executive. The Committee of Experts considered that these provisions might seriously affect the "full development and utilisation of machinery for voluntary negotiation" mentioned in Article 4 of Convention No. 98, ratified by Brazil. Furthermore, the Committee wishes to stress, in connection with Act No. 6708 of 30 October 1979 respecting the automatic adjustment of wages, as it has already done on many occasions with respect to Brazil and other countries, that if, as part of its stabilisation policy, a government considers that wage rates cannot be settled freely through collective bargaining, such a restriction should be imposed as an exceptional measure and only to the extent that it is necessary, without exceeding a reasonable period, and it should be accompanied by adequate safeguards to protect workers' living standards.
8. 176. More specifically, as regards section 623 of the Consolidation of Labour Laws, the Committee notes that a Government representative stated at the June 1979 Session of the International Labour Conference that this provision had been removed from the draft Bill mentioned above.