Informe provisional - Informe núm. 207, Marzo 1981

1. 198. The complaint is contained in communications from the National Labour Front (FNT) (18 April 1980), the World Confederation of Labour (WCL) (22 April 1980), the International Confederation of Free Trade Unions (ICFTU) and the International Metalworkers' Federation (IMF) (22 April 1980), and the World Federation of Trade Unions (WFTU) (30 April). The WCL sent additional information on 25 April and 29 May 1980, the ICFTU and IMF on 28 April and 23 May 1980 and 6 February 1981, and the FNT on 5 January 1981. The Government replied by a communication of 31 October 1980.
2. 199. 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. Allegations of the complainants

1. 200. The allegations refer to the strike by the workers of the metallurgy sector of Sao Paulo from 1 April to 12 May 1980, the primary purpose of which was to obtain wage increases and continuity of employment for a year, and which was declared illegal by the judicial authorities on 14 April 1980.
2. 201. The complainants allege that many people were injured on 18 April as a result of violent intervention by the military police against groups of workers who were gathered together in front of the headquarters of their trade unions. According to the WFTU, several dozens of workers were injured.
3. 202. The complainants add that the authorities removed trade union leaders from office and replaced them by officials appointed by the political authorities; one of the leaders affected was Luis Inácio da Silva. The FNT, for its part, alleges that the authorities placed the metalworkers' unions of Sao Bernardo and Santo André under control, and the WCL, in its communication of 22 April 1980, alleges that trade unions were arbitrarily dissolved.
4. 203. In its communication of 25 April 1980, the WCL mentions the arrest of 34 persons; 12 of these are said to have been freed a few days later, but at the date of the communication the following trade union leaders were still under arrest: Luis Inácio da Silva, Devanir Ribeiro, Orlando Francelino da Motta, José Cicotti, Dijalma de Souza, Ernesto Cencini, Isaias Urbano de Cunha, Edevaldo Santiago de Araujo, José Maria de Almeida, Expédito Soares, Severino Alves da Silva and Joao Batista dos Santos. The communication from the ICFTU and IMF of 28 April 1980 states that on 21 April about 30 trade unionists were still in prison, including Arnaldo Gonçalves. The communication from the WCL dated 25 April 1980 further alleges that a delegation of agricultural workers who wished to demonstrate their support for the strikers was also arrested, but only for a few hours. In their last communication the ICFTU and IMF state that the political police arrested one of the organisers of the strike, Osmar Mendonca, when he was in a church proposing a return to work, and that 12 trade unionists - including Luis Inácio da Silva - were released on 22 May, although the authorities had arrested six trade union leaders on suspicion of having continued the action which had been begun by those who were under arrest. In their communication of 28 April 1980, the ICFTU and IMF state that, on 21 April, the police announced the prohibition of assemblies of strikers in districts where general assemblies were to have been held.
5. 204. The complainants also allege that 1,507 metalworkers were dismissed on 14 May 1980 - two days after the strike had ended - and stress the need to adopt new labour legislation in conformity with ILO Conventions.
6. 205. In its communication of 5 January 1981, the FNT states that the trade union leaders were to be tried in February under the National Security Act. In its communication of 6 February 1981, the ICFTU and IMF state that these persons are Luis Inacio da Silva, Rubens Teodoro Arruda, Djalma de Souza Bom, Osmar Santos Mendoça, Enilson Simoes de Moura, Gilson Luiz Correia de Menezes, Jurandir Batista Magalhâes, Nelson Campanholo and Manoel Anisio Gomes (the Trade Union of Metalworkers of Sâo Bernardo do Campo); and José Cicote, José Timóteo da Silva and José Maria de Almeida (the Trade Union of Metalworkers of Santo Andre).

B. Reply of the Government

1. 206. In its communication of 31 October 1980, the Government states that, now that "the charismatic hold" of Luis Inácio da Silva over his followers has been broken and that he and the other trade union leaders have been released, social peace has returned to the category of professional metalworkers of Sao Paulo.
2. 207. According to the Government, the strike was called on 31 March 1980 after the labour authorities had exhausted all possibilities of negotiation with a view to bringing about conciliation between the metalworkers' unions and the employers of Group 14 of the FIESP.
3. 208. Among the wage claims made, according to the Government, was the demand for a 15 per cent increase over and above the National Consumer Price Index (NCPI), which, if it had been granted, would have involved an adjustment of almost 105 per cent per annum at a time when inflation was running at only 80 per cent. In the course of the negotiations which preceded the strike, the employers repeatedly raised their offers of percentage increases above the NCPI, but their offers were rejected.
4. 209. In its decision of 1 April 1980, states the Government, the Regional Labour Court (RLC) of the second region granted an increase of 6 or 7 per cent (depending on the situation of the workers) in return for higher productivity. This increase was rejected and the strike continued, thus marking contempt for a decision of the labour court; the strike was therefore declared illegal by the RLC on 14 April under section 25 of Act No. 4330 of 1 June 1964, which stipulates that "a strike shall be terminated by decision of a labour court", and under section 22 of the same Act, which prohibits strikes "for the purpose of altering the fixed conditions of a decision handed down by a labour court". The Government also remarks that no appeal was made against the court decision of 14 April.
5. 210. The Government states that the object of the assumption of control of the trade unions ordered by the Minister was to halt a strike which had deviated from its true purpose and which relegated the legitimate demands of workers to second place; the Government adds that this action was carried out under section 528 of the Consolidation of Labour Laws, which empowers the labour authority, in the event of a dispute or of circumstances of such a nature as to disrupt the operation of a trade union body, to intervene for the purpose of taking control of such body and to propose or take the necessary steps to ensure that it again functions normally. In application of the law, continues the Government, the trade union leaders were removed from office, a sanction provided for by section 724b of the Consolidation of Labour Laws in the event of a suspension of services or contempt for the decisions of the labour courts at the instigation or orders of the leaders.
6. 211. As regards the arrests and interrogations, the Government states that the leaders mentioned by the WCL were imprisoned for contempt of the RLC's injunction to terminate the strike and for contravention of the National Security Act, under section 36 of which incitement to collective contravention of the Act and incitement to hostility to the armed forces, or the encouragement of hostility between the armed forces and classes of society or civil institutions, are punishable as offences. The Government adds that the orders for the arrest of the above-mentioned trade union leaders were countermanded on 6 and 20 May 1980, that any offences for which they may be responsible are still under examination by the judicial authorities, and that the trials of the leaders are continuing.

C. Conclusions of the Committee

1. 212. The Committee takes note of the Government's statement that the strike was declared illegal by a decision of the judicial authority in application of sections 22 and 25 of Act No. 4330 because it had been continued by the trade union leaders and workers in contempt of the earlier court order making a binding settlement as regards wage increases. The Committee also notes that the strike ended on 12 May 1980 and that there is now social peace in the metallurgical sector.
2. 213. After examining the statements of the Government, the Committee wishes to point out, as it has already done quite recently in the case of similar complaints against the Government of Brazil, that the right to strike is one of the essential means through which workers and their organisations may promote and defend their occupational interests on the basis of this principle the Committee has considered that the conditions that have to be fulfilled in order to render a strike lawful must be reasonable and, in any event, not such as to place a substantial limitation on the means of action open to trade union organisations.
3. 214. In the present case the Committee observes that the dispute between the workers and the employers of the metallurgical sector of Sao Paulo was referred to the courts, which, on the day following the declaration of the strike, gave a binding decision regulating the disputed wage issues and thus making it unlawful to continue the strike. In this respect, although in some cases the Committee has recognised that the obligation to notify the administrative authorities in advance and to have recourse to conciliation and voluntary arbitration procedures in collective labour disputes may not be regarded as a violation of the principles of freedom of association, the Committee wishes to draw the attention of the Government to the fact that the imposition of compulsory arbitration, whether by judicial or by administrative authority, may prevent the workers from resorting to strike action - particularly if the penalties for those who do so are serious - thus depriving them of an essential method of promoting and defending the interests of their members.
4. 215. As regards the placing under control of the trade unions by the authorities, the removal from office of trade union leaders and their replacement by government officials, the Committee notes that section 528 of the Consolidation of Labour Laws authorises such intervention in the event of disputes or circumstances of such a nature as to disrupt the normal operation of a trade union body, and that section 724b of the Consolidation of Labour Laws permits the removal from office of leaders in the event of suspension of services or contempt for decisions of the labour courts.
5. 216. In connection with this aspect of the case the Committee must, however, recall that it has on a number of occasions examined cases concerning the placing under control of the unions by the Brazilian authorities. In these cases the Committee has drawn the attention of the Government to the importance which it attaches to the principle that workers' organisations should have the right to elect their representatives and organise their administration and activities in full freedom, and that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. The Committee has also pointed out that the placing of trade union organisations under control entails a serious danger of restricting this right. Furthermore, the Government does not state whether it has put an end to the control of the trade unions and whether the trade union leaders have been able to resume office. The Committee requests the Government to keep it informed of developments in this respect.
6. 217. As regards the imprisonment of the trade union leaders mentioned by the complainants and the court cases in which they are going to appear, the Committee notes the Government's statement that the orders for the imprisonment of the arrested leaders have been countermanded, but that the latter are still under trial and that the offences for which they might be held responsible as a result of their contempt for the decision of the Regional Labour Court are still under examination. In this connection the Committee must stress that the development of labour relations could be impaired as a result of an inflexible attitude being adopted in the application of excessively severe sanctions to workers who participate in strike action, particularly when these are penal sanctions. The Committee also requests the Government to send information on the results of the judicial proceedings against the arrested trade union leaders.
7. 218. In the light of the foregoing considerations the Committee feels that it would be useful, in the interests of the development of harmonious industrial relations in the country, for the Government to amend its legislation in the light of the principles set forth in the foregoing paragraphs.
8. 219. Lastly, the Committee observes that the Government has not referred in its communication to the allegations relating to the arbitrary dissolution of trade unions, or to the physical assaults on workers in front of trade union premises on 18 April, which are alleged to have resulted in injuries to dozens of persons, or to the prohibition on the holding of assemblies announced by the police on 21 April, or to the arrest for a few hours of the delegation of agricultural workers who were supporting the metalworkers' strike, or to the many dismissals which are said to have taken place two days after the strike. The Committee therefore requests the Government to send additional information on each of these points.