Demande directe (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Brésil (Ratification: 1952)

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Observation

Demande directe

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Article 4 of the Convention. Promotion of collective bargaining. Criteria for determining the trade union organization entitled to bargain collectively in the event of a dispute over representation between several trade unions. The Committee recalls that, based on a referral by the Committee on Freedom of Association (Case No. 3219), it requested the Government to provide information on the measures taken to ensure that disputes over representation are settled on the basis of objective and pre-established criteria for representativeness, taking due account of the wishes of the workers concerned.

The Committee notes that the Government confines itself to recalling that: (i) in the context of the system of trade union unity in force in the country, the Ministry of Labour limits itself to registering trade unions without interfering in trade union activities; and (ii) disputes that may arise between unions are resolved either through conciliation and mediation or through the courts. The Committee also notes that, in their respective observations: (i) the National Confederation of Industry provides indications similar to those of the Government; and (ii) the Single Confederation of Workers (CUT) emphasizes the particular importance of this subject being addressed by the working group created by Decree No. 11,477 of April 2023, the objective of which is to draw up proposals to restructure industrial relation and promote collective bargaining.

The Committee observes that none of these communications makes reference to the criteria used by the courts to resolve disputes relating to representation that may arise in the context of the system of single trade union nor, in this context, to the manner in which account is taken of the real presence of unions seeking to obtain the monopoly of trade union representation. Emphasizing once again the importance, under Articles 2 and 4 of the Convention, of organizations representing workers in the framework of collective bargaining being independent and representative, the Committee requests the Government, in consultation with the social partners, to take the necessary measures to ensure that, within the context of the system of single trade union currently in force in the country, disputes over representation are settled on the basis of objective and pre-established criteria for representativeness, taking due account of the wishes of the workers concerned. The Committee requests the Government to provide information on any progress achieved in this regard.

Duration of collective agreements and accords. The Committee recalls the ongoing dialogue with the Government concerning section 614(3) of the Consolidation of Labour Laws which, since the 2017 legislative reform, has set a maximum limit of two years for the duration of collective agreements and accords and has prohibited the inclusion in such agreements and accords of clauses on the maintenance of their effects in the event of their non-renewal. The Committee previously invited the Government to engage in consultations with the representative organizations of employers and workers on the content of section 614(3) of the Consolidation of Labour Laws.

The Committee notes that the Government refers to a ruling by the Supreme Federal Court of 30 May 2022 (ADPF No. 323) considering that it was not possible to prolong the effects of collective agreements and accords once their date of expiry has been reached. However, the Committee notes that the Government has not provided further information on the submission of the content of section 614(3) of the Consolidation of Labour Laws to social dialogue. Recalling once again that the determination of the duration of collective agreements and their effects by the parties is covered by the principle of free and voluntary collective bargaining promoted by the Convention and that any derogations from this rule should in so far as possible reflect tripartite agreement, the Committee once again invites the Government to engage in consultations with the representative organizations of employers and workers on the content of section 614(3) of the Consolidation of Labour Laws. The Committee requests the Government to provide information on this subject.

Act No. 14.370 of 2022 creating a voluntary service programme. The Committee notes the observations of the CUT, according to which: (i) the programme is intended for persons aged between 18 and 29 years of age, as well as persons over 50 years of age and persons with disabilities; (ii) municipal authorities may engage workers for a maximum duration of 22 hours a week to undertake activities of ‘public interest’ in exchange for compensation equivalent to half the minimum wage, without them benefiting from most forms of protection afforded by the labour legislation; and (iii) these workers will not be covered by any collective agreements and will not be able to organize in trade unions. The Committee also notes the Government’s reply, according to which: (i) the programme is intended to assist in the productive inclusion of vulnerable persons and to reduce the social and labour market impact of the crisis arising due to the COVID-19 pandemic; and (ii) the programme, established for a temporary period of 24 months, has not yet entered into force as the adoption of the implementing texts is still pending. The Committee notes these various indications and requests the Government to provide information on: (i) the number of persons concerned by the programme once it has entered into force; and (ii) the point raised by the CUT concerning the access of these persons to collective labour rights.

General Act on data protection. Sharing of information and collective bargaining. The Committee notes the observations of the CUT, according to which the General Act on data protection (No. 13,709 of 2018) provides the basis for court rulings denying the provision to trade unions of information on workers, even when the sharing of such information is envisaged in collective accords. The Committee notes that, according to the CUT, the sharing of such information is necessary both so that unions can assess the due application of the collective agreements that are in force and to be able to engage in meaningful collective bargaining. Recalling that the Collective Bargaining Recommendation, 1981 (No. 163), which supplements Convention No. 154, ratified by Brazil, indicates in Paragraph 7 that measures adapted to national conditions should be taken, if necessary, so that the parties have access to the information required for meaningful negotiations, the Committee requests the Government to provide its comments on the CUT’s observations.