Informe provisional - Informe núm. 335, Noviembre 2004

1. 366. The complaint is contained in a communication from the Taubaté Metalworkers’ Union dated 25 August 2003. In a communication dated 28 August 2003 the Single Central Organization of Workers (CUT) expressed its wish to support the complaint.
2. 367. The Government sent its observations in a communication dated 23 June 2004.
3. 368. Brazil has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) but has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. The complainants’ allegations

1. 369. The Taubaté Metalworkers’ Union, a member of the CUT, currently represents 18,000 workers in the cities of Taubaté and Tremembé, 11,089 of whom are union members.
2. 370. The Union recalls that trade union autonomy was enshrined in the current Federal Constitution, enacted in 1988, which removed several obstacles that had hindered trade union activity, prohibiting any form of intervention by the authorities in internal trade union organization. However, despite the constitutional provision, some public authorities do not respect the principle of freedom of association and their actions constitute a violation of the Constitution and of the fundamental principles of the ILO.
3. 371. The trade union alleges that it was the victim of an intervention on the part of the authorities, through the judiciary, constituting serious interference in the life of the organization. The union Statute provides that the term of office for union leaders is four years. Given that the current leaders began their term of office on 20 November 1999, elections were called in 2003 to replace them. The union points out that elections are an act of internal autonomy and are conducted in a similar way to an assembly, divided into several sessions, under the supervision of trade union representatives. Three candidatures registered for the elections, with 36 candidates each. Votes were due to be cast on 29, 30 and 31 July 2003. The trade union alleges that the elections were taking place in a democratic and peaceful fashion when, on the morning of the 29 July 2003, a judge from the city of Taubaté, Dr. Jorge Alberto Passos Rodríguez, made a serious administrative intervention in the elections which significantly affected the election results. Indeed, on the pretext of carrying out an order from the São Paulo State Court of Justice that equal treatment should be guaranteed for one of the electoral lists, the judge gave the instruction to intervene in the union election assembly, and personally assumed responsibility for administering the elections and establishing new rules of electoral administration, in absolute violation of the trade union Statutes. The judge gave orders for the following measures to be taken: (a) evacuation of the court building, which was immediately surrounded by military police; (b) summons of the police to force entry into the union offices in order to implement the subsequent measures; (c) suspension of the elections; (d) seizure of all ballot boxes and voting papers (thereafter, taken to the court headquarters) and cancellation of votes already cast; (e) order to forcibly take those incharge of the voting committees to the court buildings; (f) establishing the court as the voting headquarters, and restricting access to only one lawyer per candidature registered; (g) forcible removal of the election coordinator to his office in order for him to hand over all information relating to the administration of the elections; and (h) order to display notices in the workplaces explaining what was happening. It should be pointed out that during implementation of point (g), the union president arrived at the court in a police vehicle and was greeted by a crowd shouting “thief”, “criminal” and “cheat”. The crowd, seeing the president in that situation, had wrongly assumed that he had been detained for having committed a crime. The union stresses the negative repercussions of that incident, in a city of only 300,000 inhabitants, on the very day of the elections, particularly given that one of the lists of candidates took advantage of the situation and spread the false rumour through a statement that was sent out to all factories and workers.
4. 372. The trade union submits that the order for equal treatment was addressed to the union president, and that failure to comply with it would have nullified the election. The judge should certainly not have removed the union leaders from the administration of the election and taken their place. By his actions, the judge committed an abuse of power. Once voting was over, the representative of the Ministry of Labour declared one of the candidatures to have been elected, despite the fact that it had not won the number of votes necessary to be declared elected (half plus one of the valid votes, according to the Statute). The judge’s actions were outside the judicial sphere and took on a purely administrative nature, constituting intervention and interference in the union. Two judicial appeals were lodged against the judge’s acts, but they had no immediate effect. The São Paulo State Court of Justice refused all preliminary requests to suspend the judicial orders, and the appeals are due to be heard within six months. However, there is no possibility according to domestic legislation of rapid intervention by the Federal Supreme Court to change the situation created by the aforementioned abuses. The union states that on 20 November 2003 the violation was factually and legally confirmed, since the candidates elected in the manipulated elections took office on that date.
5. 373. Lastly, the union points out that the judicial intervention violated several articles of the Statute, article 8 of the Constitution and Article 3 of Convention No. 87.

B. The Government’s reply

1. 374. In a communication dated 23 June 2004, the Government forwards the information supplied by the judge, Dr. Mohamed Amaro, third Vice-President of the São Paulo State Court of Justice, and by the judge of the First Civil Instance of the region of Taubaté, Mr. Jorge Alberto Passos Rodríguez. Dr. Amaro’s information concerns the two appeals (security orders) lodged by the complainant organization in an attempt to declare null and void the elections carried out with the intervention of the judiciary. He explains that one of the lists of candidates (No. 2) in the union election had presented a request for enforcement of constitutional rights in favour of Messrs. Jeremías Pereira de Castro, José Donizete Lopes, Cícero Batista and Benedito Raimundo de Carvalho. That request was met essentially to guarantee their participation in the trade union elections planned for 29, 30 and 31 July 2003. Dr. Amaro points out that the first appeal was presented by the complainant on 31 July and that, given that some facts were contested, he decided to deny the request for preliminary action, in order to allow more time to gather information. He ordered an investigation into the relevant information and sent summons to the passive parties, i.e. those in whose favour the questioned decision had been made (electoral list 2). The orders were sent to the Office of the Prosecutor-General for his approval, after which they would be distributed for court proceedings.
2. 375. Regarding the complainant’s second appeal, he states that it was presented against the actions taken by the judge of the First Civil Instance of the region of Taubaté, Mr. Jorge Alberto Passos Rodríguez. The allegation, in summary, is that the judicial authority intervened in an abusive manner in the union election process, organizing the elections without having been asked to do so, on the pretext of carrying out a decision by the São Paulo State Court of Justice, taken by Judge Maia da Cunha. The complainant states that those actions are invalid and requests that the elections should be declared null and void and that new elections be held in accordance with the Statutes of the union, without interference from the judiciary. The request for preliminary action was also turned down in this case, given the complexity of the facts that, moreover, are disputed. These orders are also before the Office of the Attorney-General for his approval and subsequent distribution for court proceedings. The Government includes, as an appendix, several documents that are part of the respective judicial proceedings.
3. 376. In the explanations given by the judge of the First Civil Instance instance, Mr. Jorge Alberto Passos Rodríguez, who intervened directly in the electoral process, he denies having acted illegally, abused his power or acted in an arbitrary nature. He explained that he received the documents on 28 July 2003, after the São Paulo State Court of Justice had granted the request for enforcement of constitutional rights presented by electoral list No. 2, and ordered the then union president, Antonio Eduardo Oliveira, to guarantee equal treatment for that list. Paragraph (e) of the decision states that “the president/candidate and the coordinator of the election, by means of specific protection, must ensure that equal treatment is given to the competing electoral lists in the current election process, with attention to the requests already made to the election coordinators by list No. 3, regarding voting materials, distribution of ballot boxes, counting of votes, parity on the returning officers’ committees (…) and maintaining equality in all other matters relating to the election”.
4. 377. Mr. Antonio Eduardo Oliveira, who was presiding over the election in his capacity as union president, and was also running as a candidate, informed the court that he would not comply with the order since that in itself would infringe on the provisions of the Social Statute of the union regarding voting materials, distribution of ballot boxes, composition of the collection committees (article 82 of the Statute) and parity on the returning officers’ committees. He stated that to comply with such a decision would invalidate the electoral process. Therefore, since the decision of the Court of Justice was not to be implemented, and considering that applying financial sanctions would be pointless, given that what was required was compliance with the order of equal treatment and that the election was already under way, the judge issued the decision that the order should be implemented at 12 p.m. that day; he immediately suspended the casting of votes and ordered voting to begin again.
5. 378. The ballot boxes ready for voting were confiscated, and the representatives of the different lists, including those on list No. 1 which had not been mentioned in any documents, were compelled to present themselves in a specific room in the civil court building, as a means of maintaining order at that time. Furthermore, the judge ordered that all electoral committee members be taken to the court, with a police escort, and that the election coordinator should also be present to provide the necessary information in accordance with the Court of Justice decision. He instructed, moreover, that notices should be displayed in the polling stations indicating that the elections would begin again later that day, which is indeed what happened. The votes that had already been cast were discarded and placed in appropriate bundles. Joint commissions were established, made up of representatives from the different lists and lots were drawn for the presidency from among the commissions, with names provided by the different lists, including the list of the complainants. The ballot boxes were initialled by all those present in the meeting room. In order to ensure that the correct procedure was followed, it was begun in the presence of justice officials and with the support of the police. The judge states that, in agreement with the president appointed for the vote, which ended in the early morning of 8 August 2003, list No. 2 gained the largest number of votes, with 3,252 votes; list No. 1 received 2,743 and list No. 3 (which included, amongst others, the president of the complainant organization) obtained 824 votes; there were 112 blank and 208 invalid ballot papers, out of a total of 7,139 votes. Consequently, list No. 2 was declared elected, as stated in the record of the general ballot of the election and closure of the election process.
6. 379. The judge confirms that there was no intervention in the complainant union. Rather, some judicial action was taken, aimed at guaranteeing effective compliance with the decision of the São Paulo State Court of Justice. He states that union activities, which are so important for workers, are necessarily subject to judicial orders. Regarding the claim that list No. 2 did not obtain the majority established in article 100 of the Social Statute, which led the complainant to request the invalidation of the election, the judge points out that the Statute only provides for re-election in the case of a draw, which did not happen in this instance. There is no possibility of invalidating the casting of votes, the ballot, or the declaration of the result, since none of the circumstances established in the Statute (articles 103/105) has occurred, and the election took place in accordance with the decision of the Court of Justice, that urgent and specific enforcement of constitutional rights be granted. The result is therefore worthy of respect.
7. 380. Lastly, the Government emphasized that direct judicial participation took place only because the complainant itself expressly notified the authorities that it would not comply with the decision of the Court of Justice, without providing detailed reasons, but only brief and general statements. Thus, article No. 106 of the Statute is applicable according to which, an event cannot be invalidated by the entity that caused the invalidation.

C. The Committee’s conclusions

1. 381. The Committee notes that the current case concerns allegations of undue judicial interference in the election held to appoint new trade union leaders to the Taubaté Metalworkers’ Union, and non-observance of the existing provisions of its Social Statute. The complainant requests that the aforementioned vote be declared null and void and new elections be held.
   • Intervention in the election
2. 382. The Committee notes that the election to appoint new union leaders to the complainant organization were set to take place on 29, 30 and 31 July 2003. According to the union, the elections constitute an act of internal autonomy and are conducted in a similar way to an assembly, divided into several sessions, under the supervision of trade union representatives. Three candidatures registered for the elections, with 36 candidates each. According to the complainant, the elections were taking place in a democratic and peaceful fashion when, on the morning of 29 July 2003, a judge of the First Civil Instance from the city of Taubaté made a serious administrative intervention in the elections, which significantly affected the election results. According to the information provided by the Government, on the day before the elections, one of the lists registered for the voting process (No. 2) had presented a request for enforcement of constitutional rights to the São Paulo State Court of Justice, in favour of Messrs. Jeremías Pereira de Castro, José Donizete Lopes, Cícero Batista and Benedito Raimundo de Carvalho, requesting recognition and equal treatment during the elections. That request was intended essentially to guarantee their participation in the trade union elections. Paragraph (e) of the judicial decision stated that “the president/candidate and the coordinator of the election, by means of specific protection, must ensure that equal treatment is given to the competing electoral lists in the current election process, with attention to the requests already made to the election coordinators by list No. 3, regarding voting materials, distribution of ballot boxes, counting of votes, parity on the returning officers’ committees (…) and maintaining equality in all other matters relating to the election”.
3. 383. The Committee notes that the complainant alleges that the judge of the First Civil Instance, on the pretext of carrying out the aforementioned order, gave the instruction to intervene in the union election assembly, and personally assumed responsibility for administering the elections and establishing new rules of electoral administration, in absolute violation of the union Statutes. The complainant adds that the order for equal treatment was addressed to the union president, and that failure to comply with it would have nullified the election. It holds that the judge should certainly not have removed the union leaders from the administration of the election and taken their place and that by his actions, he committed an abuse of power. The Committee notes, however, that the Government maintains in this respect that Mr. Antonio Eduardo Oliveira, who was presiding over the election in his capacity as union president, and was also running as a candidate, informed the court that he would not comply with the order since that itself would infringe on the provisions of the Social Statute of the union regarding voting materials, distribution of ballot boxes, composition of the collecting committees and parity on the returning officers’ committees, stating that to comply with such a decision would invalidate the electoral process. According to information provided by the judge of the First Civil Instance who intervened, he issued the decision to implement the court order at 12 p.m. that day, taking into account that the decision would not be put into practice considering that subsequent application of financial sanctions would be pointless, and given that the election was already under way. Under those circumstances, he decided to suspend immediately the casting of votes and to order voting to begin again. The Committee notes that the Government emphasizes that direct judicial participation took place only because the complainant itself expressly notified the authorities that it would not comply with the decision of the Court of Justice without providing detailed reasons, thus leading to application of article No. 106 of the Statute, according to which an event cannot be invalidated by the entity that caused the invalidation. Likewise, the judge of the First Civil Instance maintains that there is no possibility of invalidating the collection of votes, the ballot, or the declaration of the result, since none of the circumstances laid down in the Statute (articles 103/105) has occurred, and the election took place in accordance with the decision of the Court of Justice, that urgent enforcement of constitutional rights be granted. The Committee emphasizes that in cases where the results of trade union elections are challenged, such questions should be referred to the judicial authorities in order to guarantee an impartial and objective procedure which should also be expeditious [see Digest of decisions and principles of the Freedom of Association Committee, 1996, 4th edition, para. 405]. In that respect, noting that the judicial decisions adopted by the judge of the First Civil Instance have been questioned before the law, through the lodging of two appeals (security orders), the Committee requests the Government to send it a copy of the rulings as soon as the appeals have been settled and expects that they will be handed down without delay.
   • Measures taken
4. 384. The Committee takes note of the measures taken by the judge of the First Civil Instance while the electoral process was under way, particularly: suspension of the elections; seizure of all ballot boxes and voting papers (thereafter, taken to the court headquarters) and cancellation of votes already cast; and establishment of the court as the voting headquarters, restricting access to only one lawyer per candidature registered. Furthermore, the order was issued that all electoral committee members be taken to the court with a police escort, and that the election coordinator should also be present to provide the necessary information in accordance with the decision of the Court of Justice. The Judge instructed, moreover, that notices should be displayed in the polling stations indicating that the elections would begin again later that day, which is indeed what happened. Joint commissions were established, made up of representatives from the different lists, and lots were drawn for the presidency from among the commissions, with names provided by the different lists, including the list of the complainants. The ballot boxes were initialled by all those present in the meeting room. Lastly, according to the Government, in order to ensure that the correct procedure was carried out, it was begun in the presence of justice officials and with the support of the police. The Committee notes that the Government and the complainant organization provide similar descriptions of the measures taken. In this respect, noting that those measures were questioned before the São Paulo State Court of Justice, the Committee requests the Government to send it a copy of the rulings as soon as the appeals have been settled and expects that they will be handed down without delay.
   • Incident concerning the union president during
   • the undertaking of those measures
5. 385. The Committee notes that the complainant alleges that when the union president was taken to the court in a police vehicle, in compliance with the orders of the intervening judge, he was greeted by a crowd shouting “thief”, “criminal” and “cheat”. The crowd, seeing the president in that situation, had wrongly presumed that he had been detained for having committed a crime. According to the complainant, that incident had negative repercussions on the election results because it happened in a city of only 300,000 inhabitants, on the very day of the elections, particularly given that one of the lists of candidates took advantage of the situation and spread the false rumour through a statement that was sent out to all the factories and workers. The Committee notes that the Government has not included any information on that aspect of the complaint. The Committee considers that the fact that the union president was forcibly transferred in a police vehicle, without previously being given the opportunity to appear voluntarily, could constitute a harmful incident for the union president, and expects that in future there will be no further recourse to such measures unless they are unavoidable in order to comply with judicial decisions.
   • Election results
6. 386. The Committee notes that, with regard to the election results, the complainant alleges that once voting was over, the representative of the Ministry of Labour declared one of the candidatures to have been elected, despite the fact that it had not won the necessary number of votes (the complainant confirms that according to the Statute, half plus one of the valid votes must be gained to win the election). According to the information provided by the Government, list No. 2 gained the largest number of votes, with 3,252 votes; list No. 1 received 2,743 and list No. 3 (which included, amongst others, the president of the complainant organization) obtained 824 votes; there were 112 blank and 208 invalid ballot papers, out of a total of 7,139 votes. Consequently, list No. 2 was declared elected, as stated in the record of the general ballot of the election and closure of the election process. The Committee notes that, regarding the claim that list No. 2 did not obtain the majority established in article 100 of the Statute, and thus the vote should be declared invalid, the Government points out that the Statute only provides for re-election in the case of a draw, which did not happen in this instance. The Committee notes that article 100 of the Statute provides that “once voting has concluded, the president of the voting committee will declare elected the list that obtained the simple majority of valid votes (…)”. The Statute does not include a specific definition of the term “simple majority”; however, according to the meaning it is normally given, “simple majority” refers to the modality in the decision-making process that requires the highest number of votes cast, not half plus one, which would be an absolute majority. Nevertheless, noting that this aspect of the case is also questioned by means of the appeals lodged before the São Paulo State Court of Justice, the Committee requests the Government to send it a copy of the rulings as soon as the appeals have been settled and expects that they will be handed down without delay.
   • Appeals lodged
7. 387. The Committee notes that the complainant has presented two judicial appeals (security orders) against the actions of the judge of the First Civil Instance, to secure the invalidation of the elections that took place with the intervention of the judiciary. In both cases, according to the information provided by the third Vice-President of the São Paulo State Court of Justice, the preliminary requests were denied, given that some facts were contested and the facts were complex, in order to allow more time to gather the necessary information; the documents were sent to the Office of the Attorney-General for his approval, after which they will be distributed for court proceedings. The Committee recalls once again that in cases where the results of trade union elections are challenged, such questions should be referred to the judicial authorities in order to guarantee an impartial and objective procedure which should also be expeditious [see Digest, op. cit., para. 405]. The Committee, noting that the decisions taken by the judge of the First Civil Instance during the election process in this case have been questioned before the judicial authorities, and that the outcomes are pending, requests the Government to send it a copy of the rulings and expects that they will be handed down without delay.