Informe definitivo - Informe núm. 300, Noviembre 1995

1. 74. The complaint is contained in a communication from the Single Confederation of Workers (CUT) dated 17 May 1995. The Government sent its comments in a letter dated 4 September 1995.
2. 75. Brazil has not ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), however it has ratified the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 76. In its communication dated 17 May 1995 the Single Confederation of Workers (CUT) explains that in Brazil oil drilling, refinery and distillation are conducted by Petrobrás which holds a state monopoly and is the largest Brazilian public enterprise. Petrobrás employs approximately 50,000 workers organized in 20 trade unions and a national federation, the Single Federation of Oil Workers (FUP), affiliated to the CUT. The date set each year for collective bargaining between these workers, represented by the CUT and Petrobrás management is 1 September.
2. 77. The complainant adds that the 1994 bargaining round began in August and continued into September during which time the enterprise constantly rejected the trade unions' principal demands (wage increases in line with inflation; 10 per cent productivity; monthly wage indexation; payment of unpaid wages; public competitions to fill vacant jobs, etc.). As the negotiating process was in deadlock, the union meetings approved a strike of indefinite duration to commence on 27 September. On 30 September, the Supreme Labour Tribunal declared the strike abusive (illegal) and withdrew some of the acquired rights enjoyed by this category of workers, e.g. guaranteed employment and leave for trade union leaders. The unions called a meeting at which it was decided that the oil workers would continue their strike action. On 5 October, at the request of the FUP and the President of the CUT, talks took place with the President of the Republic and the Ministers of Finance, of Labour and of Mines and Energy; an agreement was signed stipulating that Petrobrás would resume negotiations, wage losses would be discussed, strikers would not be dismissed or the subject of sanctions and a committee would be established to discuss loans for workers, the payment of overtime and the collective agreement's social clauses. The strike action was halted.
3. 78. The complainant indicates that in October and November Petrobrás management refused to comply with the terms of this agreement and instituted administrative proceedings against strikers in Minas Gerais, Bahía and Feara. On 10 November, given the threat of renewed industrial action, further talks were held leading to an agreement (forwarded by the complainant in an appendix) between the FUP and the Ministers of Labour and Mines; this envisaged the payment of two additional wage bonuses to workers, an amnesty for trade union leaders penalized for industrial action, the right of defence for all oil workers threatened with sanctions and, lastly, the maintenance of guaranteed employment and the collective agreement's other social clauses.
4. 79. On 25 November, the Government revoked the agreement and, consequently, the strike action was resumed. On the same day, the Supreme Labour Tribunal held a new hearing at which Petrobrás proposed a conciliation agreement guaranteeing a review of the enterprise's wage levels; this was intended to result in a readjustment of the wage scales by 12 to 18 per cent. The oil workers accepted the proposal (the complainant forwarded a copy of the protocol) and halted the strike. Nevertheless, in December, arguing that the Government had not given its authorization, Petrobrás refused to apply the agreement that had been signed.
5. 80. From January to April, the FUP continued to demand that the enterprise comply with the agreement concluded; faced with a negative response, union meetings approved renewed strike action. On 3 May, a nationwide strike of oil workers began; they demanded the implementation of the agreement signed on 25 November 1994, a 26 per cent wage adjustment, the reinstatement of those dismissed during the Collor period, the return to previous manning strengths in the enterprise and the payment of loans to workers. On 9 May, the Supreme Labour Tribunal declared the strike abusive, arguing that the November-December 1994 agreement was legally null and void and that, consequently, there were no grounds for strike action. On 11 May and on the basis of a decision pronounced by the President of the Republic, Petrobrás began to dismiss enterprise officials including various trade unionists and maintained that it had legitimate grounds to do so. By 15 May, 59 employees, amongst whom were leaders of the trade unions and of the federation, had been dismissed. The strike continued with the trade unions guaranteeing maintenance of plant and equipment as well as 30 per cent of gas production for hospital, industrial and domestic supplies.
6. 81. In the CUT leadership's opinion, the measures adopted by the Brazilian Government are in flagrant violation of the national Constitution and of ILO Convention No. 98 ratified by Brazil. The relevant text in the Constitution stipulates specifically that trade union leaders may only be dismissed if they are proved guilty of an offence or serious misconduct. Moreover, the complainant emphasizes that the Supreme Labour Tribunal declared the collective agreement (of 10 November 1994) null and void given that it was concluded outside the dates set for the bargaining process and that it had not been signed by the enterprise. As indicated above, this agreement was, however, signed by two Government Ministers and, consequently, by authorities hierarchically superior to the Petrobrás management - their subordinates. The Executive disregards and rejects the document negotiated and signed by the former administration of which the present President of the Republic was a member.

B. The Government's reply

1. 82. In its communication dated 4 September 1995, the Government confirms that Petrobrás S.A. is the largest Brazilian public enterprise and that it holds a state monopoly in oil drilling, refinery, distillation and product distribution; that it employs approximately 50,000 employees organized in 20 trade unions and a national federation, the Single Federation of Oil Workers (FUP), affiliated to the Single Confederation of Workers (CUT).
2. 83. The Government adds that the sequence of events in the negotiations between the enterprise and the workers was as follows:
   • - August 1994: commencement of bargaining to renew the collective agreement without the parties coming to an understanding;
3. - 24 September 1994: union meetings approved strike action of indefinite duration;
4. - 30 September 1994: immediately after the strike broke out the conflict was resolved by the Supreme Labour Tribunal in accordance with article 114 of the Federal Constitution which stipulates the following:
   • The labour judiciary's powers comprise conciliation and judgement of individual and collective disputes between workers and employers, including public corporations and administrations at the municipal, federal district, federal state and union levels and, in the form laid down by law, of other differences regarding industrial relations as well as of disputes arising out of the enforcement of its own rulings, including those of a collective nature.
5. 1. In the event of the failure of collective bargaining, the parties shall be entitled to elect arbitrators.
6. 2. If one of the parties refuses negotiations or arbitration, the respective trade unions shall be authorized to submit the collective dispute to the judiciary which shall be empowered to set certain standards and conditions in compliance with the provisions of law and the minimum legal requirements in respect of social protection.
   • The Government adds that the Tribunal, in its ruling (30 September 1994), also established the working conditions to be respected by the parties up until the next date for bargaining, i.e. August 1995. Given the Tribunal's decision, the relevant category of employees should have returned to work forthwith, in accordance with the Strike Act (No. 7783/89). In spite of this judicial ruling, the oil workers continued their strike action in the absence of any agreement:
7. - 5 October 1994: the oil workers returned to work and pursued efforts to find an agreement with the enterprise and the Government without any accord being achieved;
8. - 25 November 1994: when the enterprise presented the case to the Supreme Labour Tribunal, the strike was resumed. Before the Tribunal pronounced any ruling, Petrobrás signed a Protocol of Intent, as a result of which the judicial proceedings were closed and the strike halted;
9. - 3 May 1995: the oil workers called a new strike demanding the implementation of the Protocol of Intent, signed on 25 November 1994;
10. - 9 May 1995: the enterprise took legal action to submit the collective dispute to the Supreme Labour Tribunal with a view to obtaining a ruling declaring the strike illegal on the grounds that a collective standard set by the Tribunal was in force, that its terms were being met - all of which rendered the strike abusive according to Act No. 7783/89. The Tribunal, after examining the enterprise's arguments, judged the strike to be abusive, declared the Protocol of Intent legally invalid and ordered the employees' return to work.
11. 84. The judicial proceedings with a view to the strike being declared abusive were conducted in accordance with the terms of the Federal Constitution and Act No. 7783/89. The relevant category of workers made full use of their right of defence always guaranteed to the parties in dispute in democratic systems. As the strike was declared abusive, the enterprise was permitted, in accordance with law, to dismiss and replace workers on strike in order to ensure both the enforcement of the ruling and respect for the rule of law. It was also incumbent on the enterprise to safeguard community supplies of essential products such as fuels and cooking gas; shortages of these were now affecting the entire population and undermining national security. In order to guarantee such supplies it was necessary to dismiss and replace some workers persisting in their strike action once the movement had been declared illegal. The Government sent court sentences of 9 and 26 May 1995.

C. The Committee's conclusions

1. 85. The Committee observes that in this complaint the complainant organization alleges: (1) violation of the principle of collective bargaining (established in Convention No. 98) in the Brazilian petroleum sector during the collective dispute (September 1994-May 1995) arising from negotiations on an agreement between oil workers and Petrobrás S.A. (state monopoly); (2) that as a result of the strikes held in the course of this collective dispute 59 strikers were dismissed (both unionists and trade union leaders).
2. 86. With regard to the violation of the principle of collective bargaining in the dispute under examination, the Committee observes that according to the complainant the strike commenced on 27 September 1994 pursuant to the enterprise's rejection of the unions' main demands and that the Government states that three days later, on 30 September 1994, the Supreme Labour Tribunal established the working conditions to be respected by the parties (and, as a consequence, the workers on strike were to return to work immediately as required by legislation). The Government also declared that subsequently, on 9 May 1995, the enterprise submitted the collective dispute to the Supreme Labour Tribunal. Moreover, the complainant indicated in this context that neither the Government nor Petrobrás had respected the terms of the relevant agreements (appended to the complaint) that they had signed with the Single Federation of Oil Workers on 10 and 25 November 1994 (the latter agreement was subsequently to be termed by the Supreme Labour Tribunal as a "Protocol of Intent" and declared legally invalid). Irrespective of these texts, the Committee must emphasize that, three days after the strike broke out and as the movement was continuing, the Supreme Labour Tribunal imposed working conditions to be respected by the parties thus rendering the strike activity illegal. On this score, the Committee wishes to recall the principle that "a provision which permits either party unilaterally to request the intervention of the labour authority may effectively undermine the right of workers to call a strike ... and does not promote voluntary collective bargaining" (cf. 265th Report, Cases Nos. 1478 and 1484 (Peru), para. 547, and 295th Report, Case No. 1718 (Philippines), para. 296). In these circumstances, the Committee considers that the action taken violated the right to strike. It requests the Government to take measures to amend legislation so that the submission of collective interest disputes to the judicial authorities is only possible by common agreement between the parties or in the case of essential services in the strict sense of the term (the interruption of which may endanger the life, personal safety or health of all or part of the population).
3. 87. Moreover, the Committee urges the Government to guarantee that collective agreements between management and unions be respected. It also requests the Government to encourage the social partners to resolve collective disputes by means of collective bargaining.
4. 88. With regard to the 59 trade union leaders and unionists dismissed and to be replaced in endeavours, as the enterprise asserts, to ensure a minimum service, the Committee observes that Brazilian legislation recognizes the right to strike in the petroleum sector to the extent that a minimum service is maintained. The Committee also observes that the complainant's and Government's versions differ in respect of whether the minimum services were effectively guaranteed during the strike: the complainant claims that, in the course of the strikes, hospital, industrial and domestic supplies were safeguarded, whereas the Government asserts that, in order to ensure such supplies, the enterprise was obliged to dismiss and replace some workers on strike. In view of this contradiction between the relevant allegations and the Government's reply, and given that the court sentences provided by the Government allude generally to strong evidence of non-compliance with the 30 per cent minimum service without however adequately indicating specific work centres or workers, the Committee is not in a position to reach conclusions on this question. Moreover, the Committee observes that, according to the Government, the strike action in the petroleum sector was declared abusive by the Supreme Labour Tribunal at the enterprise's request, in view of the fact that "a collective standard established by the Tribunal" was in force (a sentence which sets the working conditions to be respected by the parties).
5. 89. In this context, given that the Committee has specifically criticized the fact that the dispute was submitted unilaterally to the Tribunal in question and in view of the fact that this was a tense, complex and very lengthy conflict, that the complainant makes reference to two agreements signed with the Government and with the enterprise respectively and that, in its opinion, these agreements were not respected, the Committee requests the Government to take measures to facilitate the reinstatement in their jobs of the 59 trade union leaders and unionists who have been dismissed.