Rapport intérimaire - Rapport No. 358, Novembre 2010

1. 289. The complaint was presented in a communication dated 2 November 2009 from the Syndicalist Force (SF), the New Trade Union Centre of Brazilian Workers (NCST), the General Union of Workers (UGT), the Unitary Centre of Workers (CUT), the Brazil Workers’ Centre (CTB) and the General Centre of Workers of Brazil (CGTB). The World Federation of Trade Unions (WFTU) supported the complaint in a communication dated 27 November 2009.
2. 290. The Government sent its observations in communications dated 18 December 2009 and 11 October 2010.
3. 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. The complainants’ allegations

1. 292. In their communication dated 2 November 2009, SF, the NCST, the UGT, the CUT, the CTB and the CGTB state that the State Labour Prosecutor (MPT) (an independent body separate from both executive and judiciary) has been interfering in the affairs of primary, secondary and tertiary level trade unions through administrative and judicial channels. They further allege that the Office of the Public Prosecutor has initiated legal proceedings against trade unions. Moreover, the judiciary has been handing down rulings that constitute acts of interference and interference in trade union affairs. The complainants assert that through this interference and intervention the entire judicial and allied apparatus is seeking actively to dismantle workers’ organizations without any apparent reason.
2. 293. The complainants state that article 127 of the Constitution stipulates that the MPT is a permanent institution and an essential jurisdictional projection of the State; as such, it is responsible for defending the legal system, democratic order and the interests of society and of the individual. They claim that the MPT, in disregard of the mandate conferred on it by the legislature, has been extending its authority beyond the limits of its competence and reinterpreting workers’ rights. Specifically, the MPT is interpreting freedom of association from the pseudo-utilitarian standpoint of “Brazilian-style freedom of association” and has been initiating court proceedings against workers’ organizations and calling on the judiciary to revoke clauses that were the product of collective bargaining.
3. 294. These measures are accompanied by requests for penalties that are so high as to oblige trade unions to close down. The complainants cite numerous examples of the MPT’s anti-union interference in collective agreement clauses concerning union contributions, in the fining of trade unions, in decisions that look upon the payment of assistance contributions as violating the principles of freedom of association, etc. In their opinion, the MPT, in bringing cases before the judiciary that are designed to interfere with the financial viability of trade unions, is acting neither in accordance with the law nor with the Constitution, but on the basis of decisions handed down by the judiciary – such as Federal Supreme Court’s súmula No. 666 (a “súmula” is a summarization of case law of the higher courts that is intended to standardize the interpretation of the law) and the earlier standard No. 19 issued by the Higher Labour Court. The complainants contend that the judiciary’s interference in trade union affairs is a violation of the principle of freedom of association embodied in the ILO’s Conventions and in article 8 of the Brazilian Constitution, as well as of the principle of the separation of the three state powers. The MPT, the Office of the Public Prosecutor and the judiciary are undermining and debasing the principle of freedom of association by interfering directly in the continued existence of the trade union and in their internal management. Such state intervention violates the principle of freedom of association both nationally and internationally.
4. 295. The complainants state that, in addition to the MPT’s initiation of court proceedings in order to weaken trade unions and prevent them from functioning by meddling in their financial administration, the Office of the Public Prosecutor of São Paulo is trying to prevent them from engaging in strikes and protest action by taking them to court, where the State is invariably awarded damages.
5. 296. The complainants add that the judiciary is encouraging the MPT and the Public Prosecutor in their crusade by handing down sentences that threaten trade unionism as a whole. For instance, the Federal Supreme Court has issued súmula No. 666, in which it states that the contribution to trade union confederations referred to in article 8.IV of the Constitution is applicable only to members of the relevant trade unions. The Higher Labour Court, for its part, has issued decision No. 119 concerning assistance contributions, which reads as follows: “Articles 5.XX and 8.V, of the Constitution guarantee freedom of association and the right to join trade unions. Any clause in an accord, collective agreement or standard which provides for the payment to a trade union by non-unionized workers of a confederation tax, assistance contribution, promotional contribution or suchlike shall be deemed to be in contravention of such freedom or right. Any provision that does not conform to this restriction is hereby declared null and void, and any sums irregularly withheld shall be returned to the workers concerned.” The complainants state that regional courts have issued rulings to the same effect. (They cite a number of regional court rulings declaring null and void the clauses of collective agreements that provide for the payment of assistance contributions by non-unionized workers, in which the MPT is cited as plaintiff.)
6. 297. The complainants state that the evidence put forward shows that the rulings completely ignore the decisions adopted at general assemblies, which are the supreme, sovereign trade union bodies. The method adopted by the MPT is to convene the presidents of the trade unions for a hearing at the MPT, at which they are presented with a procedural adjustment agreement. Then, somewhere between blackmail and bullying, the union officials are pressured into signing the agreement, often without even a lawyer present to explain the situation or to defend them against the threat that they will be charged with all kinds of misdemeanours if they do not sign, and fined accordingly. These procedural adjustment agreements impose a number of commitments, such as not claiming contributions from members and non-members of the “trusteeship” of union activities. The complainants emphasize that the general meeting that authorizes the workers’ representatives to engage in negotiations with the employers’ organizations was attended by the workers in the industry and not only the union members, since all the workers benefit from the concessions obtained. For a union leader to go to the MPT and renounce these concessions without the consent of the rank and file is therefore absurd.
7. 298. The complainants feel that this way of proceeding shows how weak the case is for arguing that the payment of a contribution violates freedom of association, since general meetings are open to all workers of the category concerned and every vote has the same weight as that of union members. Besides, all the concessions obtained over the years thanks to the efforts of the union benefit all the workers in the category, whether or not they attend the meetings and whether or not they are union members, which proves that the payment of an assistance contribution by all the workers, irrespective of union affiliation, is necessary for the smooth conduct of the discussions that unions engage in and in their efforts to defend the interests of a professional category.
8. 299. The complainants add that the assistance contributions referred to are scheduled under article 513(e) of the Consolidated Labour Laws Act and are governed by collective agreements and union by-laws. Article 513 stipulates that it is a prerogative of the trade unions to require contributions from all workers of the economic or professional categories and of the liberal professions that they represent. For the complainants, the assistance contributions are clearly legitimate and are recognized in the Consolidated Labour Laws Act as well as in article 8 of the Constitution concerning collective labour agreements.
9. 300. Moreover, they consider that the MPT is violating the sovereign right of the general meeting of workers’ organizations to take such a decision, as they are legally protected under article 8.IV of the Constitution. The MPT’s interference is a violation of freedom of association, in that it directly inhibits the ability of trade unions to adopt their own financial regulations and assure their financial viability. The judiciary and the MPT refuse to recognize that each union defends a whole category of workers, whether or not they are union members.
10. 301. The complainants emphasize that unions in Brazil represent categories of workers, as laid down in article 511 of the Consolidated Labour Laws Act and article 8 of the Constitution. Representation by category presupposes that all the concessions and benefits obtained – whether higher salaries or better working conditions – are extended to all the workers concerned irrespective of union membership. This is a significant achievement, as it means that workers who cannot join trade unions because of their employers’ opposition enjoy the same advantages as union members, thanks to the erga omnes effect of collective bargaining. The same, therefore, should apply to the unions’ financial support, though the State authorities that the present complaint is directed at contend that the unions’ costs should be borne only by their members. This is a source of anti-union discrimination which encourages affiliated workers to cancel their membership.
11. 302. The anti-union practices engaged in by the MPT and by the judiciary are intended to undermine the decision of the workers’ general meeting, whereas employers’ organizations are at liberty to set whatever contributions they wish without any state interference. The complainants conclude by requesting the Committee to contemplate sending a direct contacts mission to collect information, engage a dialogue and help resolve the issues raised in the allegations.

B. The Government’s reply

1. 303. With its communication dated 18 December 2009, the Government attaches the observations of the MPT. Through its representative, the MPT states that under the Labour Laws Consolidation Act of 1943 the main features of Brazil’s labour legislation were: excessive state intervention in both legislative and administrative affairs, trade union monopoly with a mandatory “union tax”, severe restrictions on the right to strike, and the standard-setting power of the labour courts. The emphasis on the individual protection of workers’ interests through the labour legislation meant that the collective protection of their interests by trade unions was given less importance. The political opening up that began in the years prior to the adoption of the 1988 Constitution has to be seen from the standpoint of the country’s external debt, the succession of economic crises and the pressure of the global market. The Government’s response was to introduce measures to make labour law more flexible, and trade unions were expected to adapt to the new rules and regulations while at the same time avoiding the kind of abuses that could lead to a decline in working conditions at a time when the State was focusing on its economic woes. To be able to assume these new responsibilities, trade unions needed to be free and strong and their leaders had to adopt a fresh approach.
2. 304. Brazil’s 1988 Constitution, based as it is on the dignity of the human person and on democratic principles, modified significantly the union structure that had existed for decades past. The MPT assumed a leading role in defending the workers’ inalienable social and individual interests, especially their fundamental rights. So it is completely untrue, and contrary to the MPT’s very mandate, to accuse it of violating a basic right such as freedom of association. According to the MPT, the complainant organizations are trying to do away with any kind of check that might be imposed on them in order to prevent some of their leaders from going off the rails.
3. 305. The MPT asserts that article 8 of the Constitution guaranteed union autonomy vis-à-vis the State and protection from “negative” freedom of association, while maintaining the ban on the establishment of more than one union for each economic activity (i.e. the principle of trade union monopoly) as the basis of the union movement, the existence of federations and confederations as the higher level organizations and the levy of union membership dues in addition to the mandatory contribution required from all workers, irrespective of union membership. The maintenance of a trade union monopoly for each category and the introduction of a mandatory contribution were designed to prevent the break up and weakening of the Brazilian unions. However, this cannot continue indefinitely to be the juridical framework for trade unionism in Brazil, since it is not in conformity with the fundamental principles of freedom of association as laid down by the ILO. So long as the Constitution maintains the principle of trade union monopoly and of a mandatory contribution, there is always the possibility that unions will negotiate unfavourable conditions for the workers in exchange for special benefits for the union leaders and that membership dues will be used for the latter’s personal benefit or to finance partisan political objectives.
4. 306. The MPT explains that, in addition to state financing of the trade union movement by means of the mandatory contribution payable by all workers, unions continue to levy the union dues provided for in article 8.IV of the Constitution, as well as an assistance contribution. This was originally meant to function like the solidarity contribution that is found in some European countries, the idea being that non-unionized workers contribute to a union that negotiates better working conditions for them, i.e. an expression of their solidarity with union members and with the union itself in recognition of the services it renders. According to the Federal Supreme Court, which is the highest authority for interpreting the Constitution, union dues are not strictly speaking a tax and can therefore be levied only on a union’s members. The assistance contribution was examined by the Higher Labour Court, the country’s highest labour court, which decided that it should be paid by union members (standard No. 119 mentioned above and case law guideline No. 17 relating to collective labour disputes). The case law cited was not intended to restrict the ability of trade unions to defend the workers but, on the contrary, sprang from the need to prevent the practice frequently indulged in by certain “shadow” trade unions which have no members, serve merely as a screen for obtaining financial resources, have no commitment to the rank and file and can easily be manipulated by enterprises to make the provisions of labour law more flexible.
5. 307. The MPT states that, there are of course a significant number of militant representative trade unions that call strikes and obtain concessions for the workers. When the MPT comes across practices or clauses that contravene the laws and regulations in force, some of its attorneys feel duty bound to enforce compliance in line with the interpretation handed down by the courts. Often it is the workers themselves (who pay their assistance or compulsory contribution through the MPT where the collective labour agreements are registered) who request the MPT’s intervention. In these cases the MPT is simply following the court’s guidelines. Currently, the MPT’s officials are trying to introduce a process of formal dialogue with the trade unions to resolve the various issues surrounding the proper exercise of freedom of association.
6. 308. The MPT states that on 28 May 2009, a National Coordinating Body for the Promotion of Freedom of Association (CONALIS) was set up with the participation of representatives of the MPT’s units throughout the country. One of the CONALIS’ strategic objectives is to guarantee freedom of association and to resolve collective labour disputes. For the MPT, a genuinely democratic society is possible only if all sectors comply with the principles embodied in the Constitution, and especially with one as important as the matter of labour relations. Hence, the need for the MPT to contribute to the democratization of the trade union movement and for its strategy of strengthening both the organizations themselves and the collective bargaining process and of striving to eliminate anti-union discrimination. On 25 August 2009, CONALIS held its first nationwide meeting, which the presidents of all the trade union confederations were invited to attend. Participants were thus able to express their views on what the movement, as a whole, expected from the new body and on the MPT’s handling of the whole issue since its creation. Through this process of dialogue a large number of contacts and meetings were organized with the leaders of the union confederations to discuss a broad range of issues, including the assistance contribution, the banning of strikes and the threats on the lives of union officials.
7. 309. The MPT emphasizes that it has been discussing a range of issues of concern to the workers and to society by promoting ongoing social dialogue and holding bipartite or tripartite meetings before it reaches its decisions. It considers that the complaint under examination is extremely important, as it provides the ILO with an overall picture of the problem of trade unionism in Brazil. The State must, at all times, consider the consequences of its actions and make sure that it is achieving its goals, even if this means reviewing its approach in the matter. Unless there is a change of culture in the trade union movement and a change of perspective by its leaders, it is the workers themselves who will suffer most. The complaint under examination could serve as a means of convincing union leaders to agree to Brazil’s ratification of Convention No. 87, which the unions’ opposition has so far unfortunately prevented from taking place.
8. 310. In its communication dated 11 October 2010, the Government states that great progress has been achieved for the working class and that employment and growth are at record highs every month. It indicates that these achievements are the fruit of the struggle of workers, represented by their unions, who sought to avoid lay-offs in times of crisis and to obtain better working conditions.
9. 311. The Government adds that the single paragraph of article 1 of the Federal Constitution of Brazil states that the power emanates from the people and will be exercised on its behalf. For this reason, the constituents who drafted the Federal Constitution in 1988 were supported by the popular vote and were required to draft a democratic constitution that takes into account the immediate and medium-term needs of the Brazilian people. Thus, the provisions on freedom of association and unity, which restrict the territorial base to at least a municipality, aim to prevent the formation of trade unions against the interests of workers and weaken the combative entities. In the same vein, article 8 of the Constitution provides several progressive measures, such as the prohibition of intervention and state interference in trade union affairs, freedom of association – maintaining trade union unity at the territorial level corresponding to at least one municipality, compulsory trade union dues to continue to ensure the independence of unions and the recognition of the right to strike and the trade right to officials.
10. 312. Regarding the assistance contributions, the Government indicates that it is not a tax, since, if that had been the case, workers would not have been able to oppose it. The Government acknowledges the existence of conflicts in relation to such contributions and reaffirms its willingness to improve the dialogue with the unions and organizations representing employers in order to find a legal mechanism to effectively regulate this matter. The Government states that, in the framework of the National Labour Forum (FNT), the creation of a negotiated contribution has been proposed, pursuant to which all workers in the same category should pay in case of concluding a collective agreement, thereby eliminating the compulsory contribution in the Constitution. The Government states that, due to lack of consensus and the fact that this issue is a source of conflict in itself, this proposal was not acted upon. The Government adds that, in order to refine and strengthen democracy in industrial relations, it proposed the creation of a Council of Industrial Relations of tripartite composition where these types of issues could be examined.

C. The Committee’s conclusions

1. 313. The Committee observes that the complainant organizations raise objections to the measures adopted by the MPT and to the decisions handed down by the judiciary revoking clauses in collective agreements with respect to the payment of assistance contributions by all workers covered by an agreement, including non-unionized workers, because of the erga omnes effect of collective bargaining. They also allege that the Office of the Public Prosecutor of São Paulo has initiated legal proceedings to prevent trade unions from engaging in protest action.
2. 314. The Committee notes that the Government has sent the observations of the MPT, whose representative states that: (1) under the Labour Laws Consolidation Act of 1943, the main features of Brazil’s labour regulations were: excessive state intervention in both legislative and administrative affairs, trade union monopoly with a mandatory “union tax”, severe restrictions on the right to strike, and the standard-setting power of the labour courts; (2) the political opening-up that began in the years prior to the adoption of the 1988 Constitution have to be seen from the standpoint of the country’s external debt, successive economic crises and the pressure of the global market and, consequently, measures have been introduced to make labour law more flexible and trade unions are expected to adapt to the new rules and regulations while at the same time avoiding the kind of abuses that could lead to a decline in working conditions at a time when the State was focusing on its economic woes; (3) if they are to assume their new responsibilities, trade unions need to be free and strong and their leaders have to adopt a fresh approach; (4) Brazil’s 1988 Constitution, based as it is on the dignity of the human person and on democratic principles, modified significantly the union structure that had existed for decades past; (5) the MPT has assumed a leading role in defending the workers’ inalienable social and individual interests, especially their fundamental rights, and so it is completely untrue, and contrary to the MPT’s very mandate, to accuse it of violating a right as fundamental as freedom of association; (6) the maintenance of a trade union monopoly for each category and the introduction of a mandatory contribution were designed to prevent the break up and weakening of the Brazilian unions, but this cannot continue indefinitely to be the juridical framework for trade unionism in Brazil, since it is not in conformity with the fundamental principles of freedom of association as laid down by the ILO; (7) with the maintenance of trade union monopoly and of a mandatory tax, there is always the possibility that unions will negotiate unfavourable conditions for the workers; (8) the assistance contribution was examined by the Higher Labour Court, which decided that it should be paid by union members; (9) case law cited was not intended to restrict the ability of trade unions to defend the workers but, on the contrary, sprang from the need to prevent the practice frequently indulged in by certain “shadow” trade unions which have no members, serve merely as a screen for obtaining financial resources, have no commitment to the rank and file and can easily be manipulated by enterprises to make the provisions of labour law more flexible; (10) when the MPT comes across practices or clauses that contravene the laws and regulations in force, some of its attorneys feel duty bound to enforce compliance in line with the interpretation handed down by the courts, and it is often the workers themselves (who pay their assistance or compulsory contribution through the MPT where the collective labour agreements are registered) who request the MPT’s intervention; (11) the MPT’s officials are currently trying to introduce a process of formal dialogue with the trade unions to resolve the various issues surrounding the proper exercise of freedom of association, and the CONALIS accordingly held a meeting in August 2009, which the presidents of all the trade union confederations were invited to attend so that they could express their views on what the movement, as a whole, expected from the new body and on the MPT’s handling of the whole issue since its creation; (12) through this process of dialogue, a large number of contacts and meetings have been organized with the leaders of the union confederations to discuss a broad range of issues, including the assistance contribution, the banning of strikes and the threats on the lives of union officials.
3. 315. The Committee notes that the Government adds that: (1) the assistance contribution is not a tax, since in that case workers would not have been able to oppose it; (2) it recognizes the existence of conflicts with regard to this type of contribution and reaffirms its willingness to improve the dialogue with the unions and the representative organizations of employers to find an effective legal mechanism to regulate this matter; (3) a proposal was made within the framework of the FNT, for the creation of a negotiated contribution that all workers in the same category would pay in case of concluding a collective agreement, thus removing the compulsory contribution in the Constitution. The Government indicates that this proposal was not acted upon due to lack of consensus and the fact that this issue remains a source of conflict; and (4) to refine and strengthen democracy in industrial relations, the Government proposes the creation of a Council of Industrial Relations, a tripartite body where these types of issues could be examined.
4. 316. The Committee recalls that it has on many occasions ruled on union security clauses, including those which provide for the payment of contributions by non-unionized workers as an expression of solidarity with unions that conclude a collective agreement. In dealing with this issue, the Committee has referred to the discussions that took place at the International Labour Conference when it adopted the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). On that occasion, the Committee on International Relations of the International Labour Conference, taking into consideration the debate which it had held on the issue of union security clauses, finally agreed to recognize that the Convention should not be interpreted as authorizing or prohibiting union security arrangements, such matters being matters for regulation in accordance with national practice [see 281st Report of the Committee, Case No. 1579 (Peru), para. 64, quoting ILO, Record of Proceedings, ILC, 32nd Session, 1949, p. 468]. In the light of that ruling, the Committee considers that problems arising out of union security clauses must be resolved at the national level, according to the practice and labour relations system of each country. In other words, both situations where union security clauses are authorized and those where these are prohibited can be considered to be in conformity with ILO principles and standards on freedom of association [see 284th Report, Case No. 1611 (Bolivarian Republic of Venezuela), paras 337–339].
5. 317. Regarding the question of salary deductions agreed to in a collective agreement that is applicable to non-unionized workers who benefit from a union’s activities, the Committee has stated in the past that, when legislation admits trade union security clauses, such as the withholding of trade union dues from the wages of non-members benefiting from the conclusion of a collective agreement, those clauses should only take effect through collective agreements [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 480].
6. 318. Bearing in mind that the Government recognizes the existence of conflicts in relation to this type of assistance contribution, as well as the apparent contradiction between the interpretation of the legislation by the judiciary and the statement of the complainant organizations to the effect that it is legally permissible to impose an assistance contribution on non-unionized workers who benefit from a collective agreement, and observing that the CONALIS of the MPT has held meetings with representatives of the union confederations to discuss various issues such as those arising from the assistance contribution, the Committee requests the Government to keep it informed of the outcome of the aforementioned meetings, as well as of the initiatives to establish a tripartite Council of Industrial Relations. The Committee reminds the Government that it may call upon ILO assistance in seeking solutions that are satisfactory to all the parties concerned and that are in conformity with the principles of freedom of association. Finally, the Committee invites the Government to consider taking the necessary measures for the ratification of Convention No. 87.
7. 319. Regarding the allegation that the Office of the Public Prosecutor of São Paulo has initiated legal proceedings to prevent trade unions from holding strikes and engaging in protest action, the Committee requests the Government to send its observations on the subject without delay and, since it is a matter of concern to the country’s trade union confederations, to initiate a dialogue with the most representative employers’ and workers’ organizations on the issue. The Committee also requests the complainant organization to provide additional information and examples concerning its allegations.