Observation (CEACR) - adoptée 2003, publiée 92ème session CIT (2004)

The Committee notes the detailed information provided by the Government in its report and the information provided in reply to the observations made by the Association of Labour Inspectors of Minas Gerais (AAIT/MG) in July 2001. It also notes the comments made in October 2002 by the Single Central Organization of Workers (CUT) and the National Confederation of Agricultural Workers (CONTAG), and the information received from the Government in January 2003 in reply to these comments.

Forced labour practices: Situation

In its previous observation, the Committee noted a convergence of views between national and international workers’ organizations and the Government concerning the existence of forced labour practices and on the conditions in which such practices develop. In many regions, a large number of workers is still subjected with their families to degrading conditions of work and debt servitude. Faced with this situation, the Government has on many occasions expressed, as it does once again in its latest report, its commitment to eradicating forced labour from the country and has provided information on the measures adopted for this purpose. The Committee noted previously in this respect:

-  the establishment in June 1995 by the President of the Republic of the Executive Group on the Elimination of Forced Labour (GERTRAF);

-­  the establishment of the Special Mobile Inspection Group (GEFM) (Ordinance No. 550 MTb of 14 June 1995);

-  the adoption in 1998 of Act No. 9777 amending sections 132, 203 and 207 of the Penal Code to supplement section 149 of the Code.

The Committee notes with interest, according to the information provided in its latest report, that the Government is continuing to take many measures to combat forced labour, and particularly preventive and rehabilitation measures, such as:

-  the establishment, within the Council for the Defence of Human Rights of the Ministry of Justice, of a special commission to specifically address the problem of slave labour. In collaboration with GERTRAF, the functions of this commission include proposing mechanisms to guarantee greater effectiveness in the prevention and elimination of rural violence and the exploitation of forced labour, including, for example, the creation of a mechanism to refuse the granting of public financing to the owners of lands on which such exploitation has been found to exist. Its objectives also include promoting better coordination between the various partners in support of certain initiatives, such as the proposed amendment to the Constitution for the confiscation of the lands of owners exploiting slave labour.

-  the launching by the Government of the National Plan for the Elimination of Slave Labour formulated by the special commission in March 2003;

-  the launching in April 2002 of a cooperation project between the ILO and the Government of Brazil, entitled "combating slave labour in Brazil", carried out in partnership with several national institutions. The objectives of this project are to strengthen GERTRAF and the means of action of the GEFM, establish a database, launch national awareness-raising plans, develop the national plan of action and implement pilot programmes for prevention and the reintegration of freed workers;

-  the adoption in April 2002 of Provisional Measure No. 74 granting temporary financial assistance (three payments each corresponding to the minimum wage) to the workers identified by the inspection services of the Ministry of Labour and Employment, as having been subjected to a system of forced labour or reduced to a situation of slavery. Freed workers are also directed towards the services of the national employment system with a view to their integration into the labour market and their vocational training. With regard to reintegration, the Government also announces in its last report the launching, before the end of 2002, of the programme of action for "temporary assistance to victims of slave-like or degrading work". An agreement is due to be concluded in this context with the Pastoral Land Commission with a view to securing accommodation, food and training in the rights of the citizen for freed workers.

The Committee also notes the information provided by the Government in its latest report, to the effect that, following the efforts made in 2001, the GEFM has carried out the largest number of operations since its establishment and, in so doing, has recorded the largest number of freed workers (1,433 compared with 583 in 2000).

The Committee notes the following comments of the Single Central Organization of Workers (CUT):

-  The CUT considers that the rise in the number of workers who are freed, a rise confirmed in the first half of 2002 with the liberation of a number of workers equivalent to the official figures for freed workers for the whole of 2001, whilst it shows the importance of the activities carried out by the GEFM, at the same time demonstrates the fact that forced labour practices, particularly in the rural sector, cannot be considered to be peripheral.

-  Further, the CUT comments on what it views as systematic practices, facilitated by the division within the executive authorities. It indicates that while the Ministry of Labour and Employment and the Ministry of Justice are committed to combating forced labour, other ministries, such as those responsible for industry and trade, agriculture and ownership, as well as the Central Bank, are not involved in this combat, and may aggravate the situation, for example by financing or granting assistance to individuals and entities which have recourse to these practices to increase their profits.

-  In addition, on the basis of the information of the Pastoral Land Commission, the CUT expresses its concern at certain indicators demonstrating the extension of these practices (illegal transport of workers, number of denunciations), worsened by the increase in the rate of repeat offences, which shows that agricultural landowners do not fear the measures adopted by the State. In these conditions, the CUT considers that, although certain sectors of the Government that are really involved in combating these practices can claim some progress, the use by the Government of figures for freed workers as a proof of its commitment cannot mask the lack of commitment and will of the Government as a whole, which prevents effective action being taken against forced labour.

-  The CUT also expresses concern at the operational inadequacy of inspection activities (GERTRAF and the GEFM). It refers to the delay between the lodging of complaints and inspections which is much too long, leaving workers in catastrophic and even dangerous situations in the case of those lodging the complaint, and providing greater opportunities for the disappearance of evidence.

-  The CUT says that the inspection system lacks human resources and appropriate logistics to confront these specific difficulties encountered in certain regions, with the result that inspections are not carried out in areas known to be zones in which slave labour is used (for example, over the past year no inspections have been conducted in São Felix do Xingo e Iriri in the Pará region). The increasing demoralization of inspectors caused by these operational inadequacies and the impunity of the guilty parties are contributing to the loss of credibility of inspections.

In reply to these observations, the Government indicates as follows:

-  The rise in the number of freed workers cannot be used to infer that there is necessarily an increase in forced labour practices. The figures have to be linked to the intensified action taken by the State, the investment in material resources and the increased commitment of the institutional partners of the Ministry of Labour and Employment. All these elements have made it possible to carry out more inspections and to deal with an increasing number of complaints, which are not always related to forced labour practices but, most frequently, to violations of the labour legislation. The Ministry of Labour and Employment has not interpreted the figures for freed workers as an indication of a reduction in slave labour, but as proof of the broader action being taken by the State. There are no statistics showing either a decrease or a rise in slave labour.

-  With regard to the lack of resources of the inspection services, the Government indicates that relations between the Ministry of Labour and Employment and the federal police have developed in a manner which avoids any bureaucracy and facilitates the training of inspection teams. The Government adds that the renovation of the GEFM’s pool of vehicles and the acquisition of modern equipment (computers, radios, GPS systems) bears witness to a constant policy of support by the Ministry for Labour Inspection. Even though certain specific difficulties persist, in overall terms, the GEFM has at its disposal greater means of action than in the past.

-  Finally, concerning the allegations made by the CUT and CONTAG concerning the concession of loans and subsidies to owners exploiting slave labour, the Government indicates that this issue is being examined by GERTRAF. A working group has been established to formulate a draft decree to drastically restrict the granting of any public credits to exploiters of slave labour.

The Committee notes all of this information, which reflects the difficulties encountered by the Government in achieving the eradication of forced labour practices. It recognizes the important steps which have already been taken by the Government and trusts that the Government will continue all of its efforts and that it will use all the means at its disposal to further strengthen the inspection services so that action can be taken with the necessary rapidity in all areas in which complaints are lodged or where there is suspicion of forced labour. The Committee particularly emphasizes that the action of the inspectorate, and particularly the GEFM, are an essential prerequisite, without which workers cannot be freed and those responsible convicted. The Committee requests the Government to continue providing detailed information on this subject and on any developments relating to the draft amendment to the Constitution for the confiscation of the lands of owners who exploit slave labour.

The Committee also notes with interest that, on 18 November 2003, the Minister of National Integration signed a decree containing 52 names (individuals or entities) which use or have used slave labour. These individuals and entities will no longer be able to enter into financial arrangements with a number of public financial institutions or benefit from national subsidies or tax exemptions. The only names included were those covered by a definitive ruling up to December 2002. Finally, this list will be periodically updated. The Committee considers that the adoption of this text marks an important step in combating those who exploit slave labour as it directly affects their financial interests. It would be grateful if the Government would provide full particulars on the application of this decree in practice. It requests the Government to supply the list of names, indicate whether the list has already been revised, specify the list of the financial institutions concerned and the manner in which the Government ensures that no financial advantage is accorded to those who exploit or have exploited slave labour.

Penal sanctions and impunity of those responsible

In its previous comments, the Committee expressed concern at the low rate of legal action against those responsible for having exacted forced labour, even though every year the action carried out by the labour inspectorate, and particularly the GEFM, leads to the liberation of hundreds of workers. The Committee requested the Government to provide statistics on the number of cases of forced labour forwarded by the labour inspectorate to the federal Attorney-General’s Office, the number of cases giving rise to criminal proceedings and the number of convictions under Act No. 9777 and section 149 of the Penal Code. According to the information provided by the Government in its report in 2001, a single case was being tried for violation of section 149 of the Penal Code. The Government did not provide any statistical information on this subject in its latest report.

The CUT indicates in its comments that the lack of criminal proceedings is principally due to the fact that the federal judiciary has on several occasions declared itself incompetent to judge these crimes, with the Attorney-General’s Office accordingly refraining from transmitting any new cases. The CUT says that the loss of credibility of the enforcement system is also illustrated by the rate of repeat offences and the increasing cruelty of practices related to forced labour. Among the cases reported in 2002, many landowners are repeat offenders already convicted or against whom successive complaints have been made (Fazenda Alvorcada, Fazenda Rio Vermelho, Fazenda Brasil Verde). The CUT expresses concern about the absence of information from the Government on the measures taken by the Attorney-General’s Office on the reports forwarded by the labour inspectorate.

In its latest report, the Government acknowledges that the principal obstacle to the conviction of persons exploiting slave labour is related to a problem of the definition of jurisdictional competence. The reports of the GEFM are forwarded to the federal Attorney-General’s Office and not to the offices of the attorney-generals of the various states, to prevent those charged from exerting pressure at the local level to prevent the investigation of complaints. However, there is a controversy in case law concerning the competence to judge the crime of imposing upon a person a condition similar to that of slavery (section 149 of the Penal Code). Certain courts consider that such trials are not within the competence of the federal judicial system. According to this interpretation, the responsibility for commencing proceedings should therefore be removed from the federal Attorney-General’s Office to the offices of the attorney-generals in each state. The Government indicates that in the Special Commission of the Human Rights Council it is planned to set aside this interpretation. The National Association of Federal Judges, which forms part of the above Commission, has emphasized the need to raise the awareness of magistrates concerning the problems encountered in the country in combating slave labour. Such awareness raising could facilitate a reversal of the case law and also lead to the definitive involvement of the judiciary in the national strategy to combat contemporary forms of slavery and other degrading forms of work.

The Government also refers to the experience of a mobile judicial unit tried out in the south of the State of Pará. A Bill on this subject is under examination to allow magistrates to accompany the mobile inspection unit composed of inspectors, members of the federal police and of the federal Attorney-General’s Office, so that magistrates are present to certify cases of flagrante delicto and judge those responsible forthwith. This mobile judicial unit would make it possible to resolve the problem of witnesses disappearing (freed workers are often difficult to find, particularly in view of their mobility), and the problem of the controversy in case law concerning jurisdictional competence.

The Committee notes all of this information. It notes with regret that the Government has not been able to provide statistical information on the application of penal sanctions against persons found guilty of having exacted forced labour, which illustrates the incapacity of the judicial system to try these cases and punish those responsible. The Committee recalls that, in accordance with Article 25 of the Convention, the Government is under the obligation to ensure that the penalties imposed by law are really adequate and are strictly enforced. The Committee considers that all the positive measures taken by the Government in the fields of awareness raising, prevention, the strengthening of the inspection system and reintegration will not result in the eradication of forced labour in Brazil unless they are also supported by a credible judicial system, capable of imposing dissuasive penalties on those responsible. The information received from the CUT on repeat offenders and on the increasingly cruel practices carried out appear to demonstrate that this is not the case. In these conditions, the Committee trusts that the Government will take all the necessary measures to ensure the implementation of Article 25 of the Convention. It hopes that in its next report the Government will be in a position to provide information on the number of cases of forced labour which have been reported to the federal Attorney-General’s Office by the inspection services of the Ministry of Labour, on the progress achieved in dealing with the cases forwarded by the labour inspectorate, and particularly on the percentage of complaints which have given rise to criminal proceedings in relation to the total number of complaints received by the inspection services, and the number of convictions under Act No. 9777 and section 149 of the Penal Code (please provide copies of the court rulings handed down). The Committee also requests the Government to provide detailed information on the project for a mobile judicial unit, to which it referred.

Administrative sanctions

In its previous comments, the Committee noted the information provided by the Association of Labour Inspectors of Minas Gerais (AAIT/MG) concerning Decision No. 13/2001 of the Minister of Labour and Employment approving the opinion of the legal services of the Ministry of Labour on the sanctions (fines) to be imposed in the rural sector in the event of violations of the labour legislation. Under this decision, the fines imposed are those established in Act No. 5889/73 governing rural labour and no longer those set out in the Consolidation of Labour Laws (CLT) for violations of labour legislation in urban areas. However, the fines established in this Act are considerably lower than those provided for in the CLT. In the view of the AAIT/MG, this decision has grave consequences for the interests and rights of rural workers guaranteed by the Constitution of 1998. It reverses the practice established since 1994 by Regulatory Instruction No. 1 of 24 March 1994, which guarantees equality of rights for workers in the urban and rural sectors, with the fines applied in administrative procedures resulting from inspections carried out in the rural sector following the same criteria as those set out in the CLT, particularly in the case of forced labour, the exploitation of work by young persons or indigenous persons, or threats to the life and health of workers. According to the AAIT/MG, the decision by the Minister shows the low level of consideration in the Ministry for the institutions responsible for matters relating to rural work. It brings to an end the application of effective penalties in the event of violations of the labour law in rural areas.

In its latest report, the Government states that there has been no change in the priorities of the Ministry. In its view, certain sectors of the labour inspectorate had wrongly interpreted article 7 of the Constitution. Whilst the article guarantees the same rights for workers in the urban and rural sectors, it does not however establish the equivalence of the penalties applicable to employers in these two sectors for violations of the labour legislation. The Regulatory Instruction of 1994 does not provide that the fines established in the CLT shall be applied for violations of labour legislation reported in the rural sector, but that the criteria for the imposition of fines shall be the same as those set out in the CLT. Since 1999, the legal services of the Ministry of Labour and Employment have issued opinions recalling that the fines applicable in the rural sector are those envisaged in the specific Act (Act No. 5889/73 governing rural labour). Nevertheless, the Government states that certain sectors of the labour inspectorate refuse to abide by these opinions, thereby forcing the Ministry to take Decision No. 13/2001.

The Government adds that, contrary to the inferences made by the AAIT/MG, Act No. 5889/73 does not have the immediate objective of combating forced labour in the rural sector. Forced labour is a crime under the Penal Code. As a result, the inspection services confronted by this scourge in the rural sector have to inform the police authorities and the Attorney-General’s Office, which will initiate criminal proceedings.

Finally, the Government reiterates that, in accordance with legal principles, changes in the amount of administrative fines, envisaged in Act No. 5889/73, can only be made by legislative action. Accordingly, in 2001, it submitted a bill to Congress to amend Act No. 5889/73 with a view, among other objectives, to increasing the amount of the administrative fines applicable in the rural sector. In view of the delays in the examination of this proposal in the Congress, and the relevance and urgency of the issue, the Office of the President of the Republic adopted Provisional Measure No. 2.164-40 on 24 July 2001. Section 4 of this Measure amends section 18 of Act No. 5889/73 by increasing the amount of the fines envisaged for violations of the above Act, adding a subsection under the terms of which violations of the provisions of the CLT or of any other relevant legislation committed against rural workers shall be punishable by the fines established in these texts. The difference between the levels of the fines applicable in the urban and rural sectors has therefore been abolished.

The Committee notes all this information. It notes with interest the adoption of Provisional Measure No. 2.164-40, which henceforth allows for violations of the labour legislation in the rural sector to be punished by fines that are as severe as in urban areas. The protection of workers’ rights is all the more important in the rural areas as it is essentially in this sector that forced labour practices are encountered. The Committee also considers that compliance with the labour legislation and the effective application of penalties for violations of this legislation are essential elements in combating forced labour practices. Indeed, violations of this nature, including the failure to pay wages, the absence of registration of workers and excessive working hours, are all elements making it possible to identify certain forced labour practices. In these conditions, the Committee hopes that the Government will ensure that the fines imposed for violations of the labour legislation in the rural sector are effectively collected, so as to guarantee the dissuasive nature of these penalties.

The Committee notes with interest that, on 30 April 2003, the labour tribunal of the 8th Region, Parauapebas/PA (Judgement No. 218/2002), upheld the application by the Attorney-General’s Office for the owner of a farm who imposed degrading and forced labour upon the workers to be ordered to compensate the collective moral damage, while at the same time confirming the administrative penalties which had already been imposed for violations of the labour legislation. The tribunal found that, from a social point of view, a production system based on the indebtedness of workers is bound to generate debt servitude. This production system creates neither employment nor income, as the workers do not receive wages and are not registered. Accordingly, no taxes or social contributions can be paid. This practice implies a considerable social prejudice by a reason of the resulting debasement of the worker, the failure of rural enterprises to pay their social contributions and also by reason of the necessity for the State to allocate significant public funds to eradicate this production system.

Coordination between the various government bodies

The Committee requests the Government to continue providing information on the measures adopted to facilitate joint action by all the bodies involved in combating forced labour (the inspection services, the federal Attorney-General’s Office, the federal police, the labour courts and the federal judiciary).

The Committee notes the agreement (Termo de compromisso) concluded on 9 April 2001 between the representatives of the labour attorney of the 8th region, the Regional Labour Delegation of the State of Pará and three owners of farms in that region. The Committee notes that the CUT refers in its comments concerning the problem of repeat offences to two of the properties belonging to one of the signatories of the above agreement (Fazenda Rio Vermelho, Fazenda Brasil Verde). The Committee would be grateful if the Government would provide information on these allegations in its next report (inspections carried out in these properties and, where appropriate, copies of the inspection reports).

Forced prostitution of young persons

In its previous comments, the Committee emphasized that work by young persons in conditions of debt bondage, including the forced prostitution of young persons, comes within the scope of application of the Convention. In view of the conditions in which this work is performed, it cannot be considered, in accordance with Article 2, paragraph 1, of the Convention, that the young person has offered her or himself voluntarily for this work. The Committee requested the Government to provide information on the allegations made by the International Confederation of Free Trade Unions (ICFTU) in October 1999 concerning the debt bondage of young persons forced to engage in prostitution in the State of Rondonia. While noting the Government’s indication in the past that combating child labour is one of its priorities, the Committee notes with regret that, despite its repeated requests, the Government has still not provided information on any investigations undertaken with regard to these allegations and, where appropriate, the measures taken. It trusts that in its next report the Government will not fail to provide information on this subject.