Rapport intérimaire - Rapport No. 218, Novembre 1982

1. 400. The Committee already examined this case on Several occasions, the most recent being its May 1982 meeting when it submitted an interim report to the Governing Body. Since then, the Government has sent a communication dated 8 October 1982.
2. 401. 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. Previous examination of the case

1. 402. The complaints in this case were lodged by the three international trade union confederations ICFTU, WCL and WFTU and by the National Labour Front of Brazil and the International Metalworkers Federation and, more recently, by the CPUSTAL. The case relates to a strike called from 1 April to 12 May 1980 by the Sao Paulo metalworkers in connection with a labour dispute. The strike was declared illegal and suppressed by the authorities. According to the complainants, the trade union leaders were removed from office and replaced by civil servants. Moreover, some of them, including Luis Inacio da Silva, were arrested and sentenced under the National Security Act. The case was examined by the Committee several times. Those examinations showed that the trade union leader Luis Inacio da Silva and other leaders had been sentenced to imprisonment for incitement to collective disobedience of the laws. They had appealed against the court's decision and had been released pending the judgement on appeal; however, on 19 November 1981 the accused had again been sentenced by the Military Court of Sao Paulo to between two and three-and-a-half years' imprisonment. Two trade unionists had been acquitted for lack of evidence against them. In its communication of 12 March 1982, the Government stated that the trade union leaders sentenced to imprisonment were at liberty and had appealed again against the sentences to the Higher Military Court.
2. 403. According to information received, it appeared that a Brazilian court of appeal had quashed the sentences, stating that the military court which had pronounced them was not competent to hear the case and that all proceedings against the trade union leaders were terminated.
3. 404. Consequently, at its May 1982 meeting, the Committee noted that, on two occasions, the leaders of the metalworkers' union had, under section 36 of Act No. 6620/78 respecting the security of the State, been condemned to heavy prison sentences for incitement to collective disobedience of the laws whereas in actual fact they had merely taken part in a workers' movement resulting in a peaceful strike in April-May 1980 to secure wage increases and job security for one year. The Committee noted that the leaders concerned had appealed against the judgements and were at liberty, and requested the Government to confirm that all proceedings against Luis Inacio da Silva and the other trade union leaders were now concluded.
4. 405. The Committee also requested the Government again for information on the allegations to which it had not yet replied (arbitrary dissolution of trade unions, removal of trade union leaders from office and their replacement by civil servants, physical assaults perpetrated against the workers in front of their union's premises on 18 April 1980 resulting in injuries to dozens of persons, the ban on the holding of meetings announced by the police on 21 April 1980, the arrest for several hours of the delegation of agricultural workers who were supporting the metalworkers' strike and numerous dismissals - 1,507 according to the complainants - said to have taken place two days after the strike).

B. The Government's reply

1. 406. In its reply of 8 October 1982, the Government states that, on 16 April 1982, the Higher Military Court referred the case of Luis Inacio da Silva and the other trade union leaders to the federal court of the State of Sao Paulo. It attaches the court's decision quashing the previous sentence on the ground of incompetence of the military court, stating that no crime had been committed against national security although there were grounds for considering that a criminal offence under ordinary law had been committed.
2. 407. On the other aspects of the case, the Government states that there is no record of any case of arbitrary dissolution of a trade union, that there were no physical assaults against workers and that if any one was injured during disturbances, whether created by strikes or not, this occurred despite the efforts made and warnings given to prevent such occurrences since the intervention or mere presence of the police was limited to a strict minimum. According to the Government, labour relations in Brazil have been extremely calm for the last three years. It also states that the holding of trade union meetings does not require police authorisation and consequently such meetings could not have been banned by the police. Lastly, it explains that in the metalworking sector of Greater Sao Paulo, in which roughly 700,000 workers are employed, the turnover of labour is usually about 20 per cent annually.

C. The Committee's conclusions

1. 408. The Committee notes the Government's denials regarding the allegation that trade unions were arbitrarily dissolved during the labour disputes in the metalworking sector in Sao Paulo in April 1980. It notes however that the Government has not refuted the complainants' allegation that trade union leaders were removed from office following the dispute and replaced by civil servants.
2. 409. on this point, the Committee requests the Government to state whether the metalworkers' trade unions in the Sao Paulo area which took part in the strike in April 1980 have since been placed under government supervision and are now managed by civil servants who have replaced the trade union leaders. Should this be the case, the Committee trusts that the Government will lift these measures without delay.
3. 410. As regards the physical assaults said to have been perpetrated against the workers in front of their union's premises on 18 April 1980 and the injuries said to have been caused to dozens of workers, the Committee notes the Government's explanations that no physical assaults took place, that police intervention was limited to a minimum and that any injuries caused occurred despite the efforts made and warnings given to prevent such occurrences.
4. 411. The Committee can only deplore that workers were injured during this labour dispute. It stresses the importance which it attaches to the need to limit the intervention of the police force strictly to the maintenance of law and order.
5. 412. Regarding the 1,500 dismissals which the complainants allege to have taken place only two days after the strike, the Committee notes the Government's explanations about the normal turnover of labour in the metalworking sector of Greater Sao Paulo of the order of 20 per cent annually for the 700,000 workers employed in this industry. The Committee notes, however, that the Government has not refuted the allegation.
6. 413. The Committee recalls that when examining previous cases of a similar nature it has pointed out that, while it obviously does not fall within its competence to decide on the desirability of resorting to dismissals for economic reasons, acts of anti-union discrimination should not take place using such circumstances as a pretext. It has also pointed out that protection against anti-union discrimination is of special importance for workers' representatives. In cases where dismissals are alleged to have taken place because of trade union activities, the Committee has also considered it necessary to ascertain whether workers are ensured, by legislation or other measures, effective protection against any acts of anti-union discrimination, in accordance with Article 1 of Convention No. 98. In the present case, the Committee notes that section 543(3) of the Brazilian Labour Code penalises an employer found guilty of anti-union discrimination against workers exercising their trade union rights. However, the Committee also considers that the existence of legal provisions prohibiting acts of anti-union discrimination, while necessary, is insufficient unless they are accompanied by effective procedures, especially preventive procedures designed to prevent such acts. The Committee trusts that the Government will take the necessary measures for securing the reinstatement of any trade union leaders and militants dismissed for having taken part in the strike in the metalworking sector in Sao Paulo in 1980, in order to create a climate that is more favourable for the development of sound labour relations.
7. 414. Lastly, as regards the case against Luis Inacio da Silva and the other trade union leaders who are now at liberty, which was referred to the federal court of the State of Sao Paulo, the Committee can only recall once again the importance which it attaches to the right to strike as one of the essential means that must be available to workers and their organisations for promoting and defending their occupational interests. It requests the Government to transmit the decision of the federal court of Sao Paulo as soon as it is handed down.