Rapport intérimaire - Rapport No. 208, Juin 1981

1. 290. The Committee examined this case at its February 1981 Session and presented an interim report to the Governing Body, Subsequently, the Committee has received a communication from the world Federation of Trade Unions (WFTU) dated 13 March 1981. The Government replied in a communication dated 18 May 1981.
2. 291. 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. 292. The allegations referred to the strike by the workers of the metallurgy sector of Sao Paulo from 1 April to 12 May 1980, the primary purpose of which was to obtain wage increases and continuity of employment for a year, and which was declared illegal by the judicial authorities on 14 April 1980, and to the events which occurred during and after the strike: intervention by the authorities in trade unions, removal from office of trade union leaders and their replacement by civil servants, arrests of trade union leaders and the prosecution under the National Security Act of union leaders.
2. 293. The Committee, having noted that the declaration of the strike's illegality was a consequence of a compulsory arbitration award that settled the disputed wage questions and imposed the termination of the work stoppage, drew the Government's attention to the principles of freedom of association in this respect.
3. 294. Referring to the intervention by the authorities in trade unions and the replacement of leaders, the Committee recalled the principle of the right of organisations to elect their representatives and to organise their administration and activities in full freedom and asked the Government to inform it of the measures taken to cease the control of the authorities over the unions.
4. 295. The Committee also noted the Government's statement that the orders for the imprisonment of the arrested leaders have been countermanded, but that the latter were still under trial and that the offences for which they might be held responsible as a result of their contempt for the decision of the Regional Labour Court were still under examination. In this connection the Committee stressed that the development of labour relations could be impaired as a result of an inflexible attitude being adopted in the application of excessively severe sanctions to workers who participate in strike action particularly when these are penal sanctions. The Committee thus requested the Government to send information on the results of the judicial proceedings against the arrested trade union leaders.
5. 296. Lastly, the Committee requested the Government to send information on the allegations concerning which it had not replied (the arbitrary dissolution of trade unions, the physical assaults on workers in front of trade union premises on 18 April 1980, which are alleged to have resulted in injuries to dozens of persons, the prohibition on the holding of assemblies announced by the police on 21 April, the arrest for a few hours of the delegation of agricultural workers who were supporting the metalworkers' strike, and the many dismissals - 1,507 according to the complainants - which are said to have taken place two days after the strike).

B. Further allegations

1. 297. In its communication of 13 March 129781, the WFTU alleges that the Military Court of Sao Paulo has sentenced 11 trade union leaders from the metallurgical sector to many years' imprisonment; they had been accused of threatening national security in violation of Act No. 6620 of 17 December 1978 by participating in and leading the metalworkers' strike in support of their socio-economic claims. Nevertheless, according to the WFTU, the actions of the workers' struggle could not have endangered national security: the strike was peaceful, negotiations were going on with the employers and the civil authorities and there were not even any strike pickets.
2. 298. The WFTU states that the convicted trade unionists have lost all civil rights for ten years and thus will be unable to carry out their activities and that they are released pending a new appeal before the Supreme Military Court.

C. The Government's reply

1. 299. In its communication of 18 May 1981, the Government states that Luis Inácio da Silva and the other leaders were brought to trial and sentenced for inciting collective disobedience of the laws, not only for having called for participation in the strike which had been declared illegal, but also for having committed injurious acts against persons and property and for having physically injured the workers who were not involved in the strike.
2. 300. According to the Government, the accused went beyond their alleged claimed objectives, openly challenging the Government, the national institutions and the established authorities, endangering social peace and national prosperity, stirring up insecurity in the community and causing serious prejudice to the country's economy, thus infringing the provisions of Act No. 6620/78 which defines offences against national security.
3. 301. The Government also states that except for José Gicote and José Timóteo da Silva, who were acquitted, the accused were sentenced under section 36, paragraph II, of Act No. 6620/78 ("inciting collective disobedience of the laws") to the following prison terms: Djalma de Souza Bon, Luis Inácio da Silva, Emilson Simôes de Maura and Rubens Teodoro de Arruda - 3 years 6 months; José Maria de Almeida, Osmar Santos de Mendonça, Juraci Batista Magalháes, Manoel Anisio Gomes and Gilson Luiz Correia de Menezes - 2 years 6 months; Nelson Companholo and Wagner Lima Alves - 2 years. The Government adds that those convicted are at liberty pending the decision of the judicial appeal and that, if the sentences are confirmed, they would still be able to appeal to the Federal Supreme Court.
4. 302. Lastly, as concerns the allegation relating to intervention by the authorities in the trade unions, the Government states that, by a decision of 12 February 1981, the Minister of State for Labour suspended the controls still existing over trade unions and named joint managements, made up of members of the various occupational categories so as to call elections within the next 180 days.

D. The Committee's conclusions

1. 303. The Committee notes that under section 36, paragraph II, of Act No. 6620/78 ("inciting collective disobedience of the laws") Djalma de Souza Bon, Luis Inácio da Silva, Emilson Simôes de Maura and Rubens Teodoro de Arruda were sentenced by a military court to 3 years and 6 months' imprisonment; José Maria de Almeida, Oscar Santos de Mendonça, Juraci Batista Magalháes, Manoel Anisio Gomes and Gilson Luiz Correia de Menezes to 2 years and 6 months' imprisonment; and Nelson Companholo and Wagner Lima Alves to 2 years" imprisonment. The Committee notes that José Gicote and José Timóteo da Silva were acquitted and that the convicted trade union leaders are free pending the decision at second instance of the Supreme Military Court.
2. 304. The Committee, while noting the Government's statements concerning injurious acts against persons and property and the use of physical violence against workers by the convicted trade union leaders, observes that it has not specified the concrete charges which are said to be brought against each one of them and that the principal reason for the convictions appears to have been the incitement to take part in the strike declared illegal on 14 April 1980.
3. 305. On the other hand, the Committee notes that the strike basically supported wage claims and that its illegality was proclaimed as a consequence of the non-submission to the compulsory arbitration award which had decided the disputed wage questions thus imposing a duty on the workers to resume work. In these circumstances, the Committee, which has on several occasions, considered that recourse to compulsory arbitration as a restriction on the right to strike is only admissible in the public service or in essential services in the strict sense (which is not the case of the metallurgical sector) considers that proceeding with the strike in question - although it had been declared illegal - does not appear to go beyond the normal scope of trade union activities and should not therefore be considered as constituting an offence, even more so in view of Article 1 of Convention No. 98, ratified by Brazil, which establishes that protection against acts of anti-union discrimination shall apply against any act calculated to prejudice a worker by reason of his participation in union activities.
4. 306. Consequently, while again drawing the Government's attention to the principle that the harmonious development of labour relations could be impaired as a result of the application of excessively severe sanctions to workers who participate in strikes, the Committee hopes that the final judgement which will be handed down in the case concerning the convicted trade union leaders will take full account of the generally recognised principles on freedom of association. The Committee requests the Government to inform it of the outcome of the judicial decision on appeal.
5. 307. The Committee notes with interest that by a decision of 12 February 1981, the Minister of State for Labour suspended the controls still existing over trade unions and that elections will take place within 180 days. The Committee requests the Government to indicate whether the leaders who had been removed from office can take up their functions again at the present time normally.
6. 308. Finally, the Committee regrets that the Government has still not sent the observations requested on certain allegations and accordingly requests the Government to send information on the arbitrary dissolution of trade unions, physical assaults on workers in front of trade union premises on 18 April 1980 which are alleged to have resulted in injuries to dozens of persons, the prohibition on the holding of assemblies announced by the police on 21 April 1980, the arrest for a few hours of the delegation of agricultural workers who were supporting the metalworkers' strike, and many dismissals - 1,507 according to the complainants - which are said to have taken place two days after the strike.