Rapport définitif - Rapport No. 359, Mars 2011

1. 291. The complaint is contained in a communication from the Trade Union of Construction and Furniture Industry Workers of Bento Gonçalves dated 11 January 2010. The National Confederation of Industrial Workers (CNTI) supported the complaint in a communication of 24 March 2010.
2. 292. The Government sent its observations in a communication dated 29 September 2010.
3. 293. 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 complainant’s allegations

1. 294. The Trade Union of Construction and Furniture Industry Workers of Bento Gonçalves stated, in its communication of 11 January 2010, that it is a primary trade union organization representing workers in the construction and furniture industries, based in the municipalities of Bento Gonçalves, Guzparé, Nova Arazá, Nova Bassano, Paraí, Nova Prata, Veranópolis, Cotipora, Vila Flores, Fagundes Varela, São Jorge, Vista Alegre do Prata, Protásio Alves, Dois Lajeados, Guabiju, Montebelo do Sul, Santa Teresa, São Valentin do Sul and União da Serra, all of which are located in the State of Rio Grande do Sul. The union in question is an important tradition in that region, having been founded 35 years ago and registered as a union on 30 October 1977.
2. 295. The complainant organization alleges that on 16 July 2009, it was informed of the dismissal of one of its officials, Mr Fábio Guiliherme de Oliveira, from the company Artesano Móveis Ltda, in violation of the principles of freedom of association. The official in question, who had been elected by direct workers’ ballot, was a substitute member of the union’s executive board since 13 January 2006 and was to have carried on his mandate until 13 January 2010. The official’s candidacy, his election and assumption of the post of union official, was the subject of regular communication with the employer through official letters and published announcements in the company. He was very active and participated in representing workers, and was intensely committed to defending the interests of workers in the category in question.
3. 296. The complainant organization indicates that, during the period in which he represented workers, the official in question was called on by the union on six occasions to deal with issues of concern for this category of workers, and the employer was informed of his absences and unpaid leave provided for under section 543(2) of the Consolidated Labour Laws, proving not only the exercise of trade union activities but also the employer’s tacit acceptance of his status as a union official. Moreover, as a result of the official’s conspicuous leadership in the occupational category in question, he represented the union in a number of distinct activities, either union-related (meeting with government ministers, for example) or of a social nature (campaigns and meetings organized by the union). The official participated actively in the general assemblies of this category, both as a union official with voting rights and as an ordinary collaborator at meetings.
4. 297. The complainant organization maintains that the union official never committed any serious offences that might have justified his dismissal by the employer. In any case, even if he had committed any such offences, the correct procedure would not have been immediate dismissal but an investigation of the alleged offence, as provided for in Brazil’s legislation, and his right to a defence should have been safeguarded. The complainant organization considers that the employer’s insistence on dismissing the official was a punishment for his trade union activities and his unwavering defence of workers’ rights. His dedicated and resolute representation of workers provoked the incomprehension and, on occasions, anger of his superiors, and he suffered discrimination for exercising his trade union mandate; all this ultimately led to his illegal and improper dismissal. The complainant organization considers that in a democratic State like Brazil, employers cannot be allowed to take abusive advantage of their managerial authority by violating rights of freedom of association, which are extensively protected and recognized by international law.

B. The Government’s reply

1. 298. In its communication of 29 September 2010, the Government transmits a copy of the minutes of a hearing before the labour court, which notes that the parties in dispute reached an agreement by which the company undertook to pay the sum of 32,500 reales (R$) to Mr Fábio Guiliherme de Oliveira as compensation for his time as a union official. The Government also attaches a report by the General Coordination Office for Labour Relations which refers to ILO Conventions Nos 98 and 135 and to the Brazilian Constitution, which guarantees freedom of professional or trade union association, and suggests that the Rio Grande do Sul Regional Superintendence for Labour and Employment invite the parties in dispute to a mediation hearing with a view to considering the possibility of settling the dispute through administrative channels.
2. 299. The Government communicates the record of the conciliation meeting which took place on 30 August 2010 before the Rio Grande do Sul Regional Superintendence for Labour and Employment, which shows that the mediator referred to the benefits for the parties concerned of re-establishing an employment relationship. In this regard, the minutes of the meeting indicate that the worker stated that the possibility of reinstatement required some thought over each possibility, as he currently works at another company and resides in another municipality. The legal counsellor for the company stated that in his view, it was not possible to reinstate the worker in the company, given that the latter has no interest in doing so and there exists a certified agreement with the judicial authority confirming the full payment of compensation to the worker. Taking this into consideration, the mediator considered that the mediation attempt could not proceed.

C. The Committee’s conclusions

1. 300. The Committee observes that in the present case, the Trade Union of Construction and Furniture Industry Workers of Bento Gonçalves alleges the anti-union dismissal on 16 July 2009 of the union official Mr Fábio Guiliherme de Oliveira from the company Artesano Móveis Ltda.
2. 301. In this regard, while recalling that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 771], the Committee takes note of the minutes, communicated by the Government, of a judicial mediation hearing which included the issue of reinstatement that took place on 3 September 2009, which indicates that the union official in question and the company had reached agreement on compensation for dismissal, taking into account his status as a union official. The Committee further recalls, as a general principle, that no one should be subjected to anti-union discrimination because of legitimate trade union activities and the remedy of reinstatement should be available to those who are victims of anti-union discrimination and that, if reinstatement is not possible, the Government should ensure that the workers concerned are paid adequate compensation which would represent a sufficient dissuasive sanction for anti-trade union dismissals [see Digest, op. cit., paras 837 and 845].