2008 Annual Survey of violations of trade union rights - Brazil
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Brazil, 20 November 2008, available at: http://www.refworld.org/docid/4c52caa1c.html [accessed 24 October 2016]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 29 – 98 – 100 – 105 – 111 – 138 – 182
The President of the Salto construction workers' union was murdered. Trade unionists were the victims of death threats, assaults, unfair dismissals and bomb attacks on their offices. There has been no respite in the brutal urban violence perpetrated by the police and criminal gangs and the problem of social exclusion is worsening. Union activists face death threats, torture, relocation and unfair dismissal. The government and employers continue to meddle in trade union affairs and activities, blocking their attempts to register and obtain legal recognition.
Trade union rights in law
Recognition of trade union centres: The government adopted Act 1990/07 which recognises trade union centres as bodies representing the interests of workers in general. Horizontal structures had been prohibited since the passing of decree 19,770 by Getúlio Vargas in 1931, to prevent workers from uniting. Union centres had never been given legal recognition, even during the periods when democracy was at its strongest.
Thanks to the new legislation, trade union centres can now obtain legal recognition and are entitled to legally represent workers in courts, public councils and other bodies. Union centres seeking recognition must meet the following requirements: the affiliation of at least 100 unions distributed across the five regions, the affiliation of unions in at least five sectors, and the affiliation of at least five per cent of all union members nationally in the first year, rising to at least seven per cent in two years. Less than six of the 17 "centres" already in operation meet these criteria.
"Unicidade" and trade union tax: The Constitution and the Labour Code provide for union representation for all workers, except the military, uniformed police, fire fighters and various other state employees. The "unicidade" system stipulates that there can only be one trade union per economic or occupational category in each territorial area. This geographically based single union system means that some sectoral federations and national trade union centres are not legally recognised. Various federal laws, however, recognise the legitimacy of trade union confederations created since the early 1980s, while the Federal High Court has recognised only those national trade union structures set up under the framework system established in 1943.
By law, each worker must pay a compulsory fee equivalent to one day's wages. It is deducted from their pay in March and then distributed to the unions, federations and confederations. A portion (20% of the fee) also goes to an employment and wage fund at the Ministry of Labour. The funds are distributed in proportion to the number of workers legally represented (based on the obligatory single union system, not on the number of workers actually affiliated).
Collective bargaining – heavy constraints: Collective bargaining is only open to those unions that are legally registered with the Ministry of Labour. The courts interfere in collective bargaining by making rulings based on petitions from only one of the parties. Public workers, including those not employed in the administration of the State, have no collective bargaining rights. Collective bargaining is also excluded in subcontracted firms.
There are significant impediments to the development of voluntary collective bargaining in relation to wages. Under section 623 of the CLT, it is possible for the provisions of on agreement that conflicts with the orientation of government policy to be declared null and void. The ILO Committee of Experts has determined that this impedes the development of voluntary collective bargaining procedures and that section 623 should be repealed accordingly.
There are restrictions on collective wage bargaining in public and mixed enterprises, making real wage increases contingent upon certain criteria such as increased productivity, the distribution of dividends or the alignment of the overall remuneration of employees with current levels in the labour market. There are also restrictions on the inclusion of automatic price index-related wage increases or adjustments in agreements which restricts the ability of the parties to freely determine the subject and content of collective negotiations.
Right to strike: The 1988 Constitution established the right to strike without restrictions for all workers and state officials, apart from the police and the military. The Constitution does allow the right to strike in the public services, however the text makes the exercise of that right subject to a particular set of rules applying to the public sector that have so far not been defined, thus creating difficulties, in practice, for public servants wishing to exercise the right to strike.
Export processing zones (EPZs): The legislation covering export processing zones in Brazil does not provide for any alterations to the labour laws applying to workers not employed in an EPZ. There is only one EPZ operating in Brazil and the unions there face similar problems to unions throughout the rest of the country.
Reforms in line with international standards: The Lula government had announced its intention in previous years to reform the Brazilian Labour Code to bring it into line with international labour standards, notably ILO Convention 87. The reform has not yet materialised.
In its most recent report to the ILO dated August 2007, the government stated that preparations of a draft trade union reform were at an advanced stage. Provisions provided for in the reform process include the promotion of collective bargaining at all levels and in all spheres of representation, removal of social dialogue between employers and workers from the scope of the State, and maintaining the State in its role of mediator. Also under the reform, labour tribunals are intended to become bodies for the voluntary settlement of disputes.
Trade union rights in practice and Violations in 2007
Background: President Lula began his second term of office in January 2007 with a broad "Growth Acceleration Programme" and a new plan to combat violence. Brazil continues to face serious problems in the area of public safety. Metropolitan areas – and especially the favelas – are plagued with the violence perpetrated by criminal gangs, corrupt and brutal police, and, in the case of Rio de Janeiro, militia seemingly linked to the police force. Some 50,000 people are murdered every year, many in summary executions.
In practice, while some of the legal limitations on unions are overlooked, employers blatantly violate union rights. Employers commonly put an end to strike action through recourse to the labour courts or a legal instrument known as the "prohibitory ban", which forbids the presence of trade unionists at the entrance or in the vicinity of the workplace.
There has been an increase in tripartite consultations aimed at solving labour disputes and in the participation of trade union organisations in governmental bodies dealing with economic and social affairs.
The authorities have proved incapable of applying the anti-union discrimination laws. Trade unionists are frequently dismissed, in total violation of the rules protecting them against unfair dismissal, and the courts, which operate very slowly, are unable to deal with the two million or more complaints filed every year. Union officials estimate that settling 50 per cent of such cases would take five to ten years.
Bomb explosion in the office of the metal workers' union of Tabauté and death threat issued against its President: On 5 June at 10.50 pm, a homemade bomb was thrown into the offices of the metal workers' union of Taubaté, in the State of Sao Paulo. No one was hurt but some days later the President of the union, Valmir Marques da Silva, who also heads the Federation of Metal Workers of São Paulo received a death threat by telephone. The caller said that the bomb was just a warning and that the President and his family would be the next targets.
On 2 July, unknown assailants shot five bullets at the porter's lodge at the union office. No one was injured. The Vice President of the union described the incident as "an attack on free and independent trade unionism".
Plane crash, growing crisis in civil aviation and two air traffic controllers arrested: Air traffic controllers have been conducting stoppages since September 2006 in protest at the poor safety conditions in airports. Two air traffic controllers, Carlos Trifilio and Wellington Rodrigues, who had issued warnings about the safety issues, were arrested. A strike that had forced the closure of 49 airports across Brazil was called off at the end of March when the government agreed to suspend plans to transfer strikers from Brasilia to other parts of the country – a reprisal against the strikers, according to the air traffic controllers – to raise wages and to negotiate the "demilitarisation" of the industry.
Intervention of the International Labour Organisation (ILO): The ILO agreed to take immediate action with the Brazilian authorities in response to a request sent in July by the International Transport Federation (ITF) and the International Federation of Air Traffic Controllers (IFATCA). In the request, the ITF and IFATCA recognised the complexity of the situation regarding the two air traffic controllers arrested, since they were Air Force personnel, but underlined that their obligations were identical to those of their civilian colleagues, and they should be entitled to exercise the same trade union rights as the other workers.
President of the Salto construction workers' union murdered: In October, Aparecido Galvão, President of the Union of Civil Construction Workers of Salto (CONTICOM – CUT Brazil) was shot dead by a bullet in the head. Galvão was chased by two cars travelling at high speed, which then stopped and opened fire. That same day, Galvão had taken photos of workers hanging from a building site without safety straps. Galvão, who had criticised construction companies for the dangerous conditions imposed on their workers, had already received death threats. In the days prior to his murder, a bomb attack was carried out on the home of the union's treasurer, and Gilmar Santinon, the head of the union, had received threatening phone calls.
São Paulo metro workers dismissed: Five trade union leaders from the National Federation of São Paulo Metro Workers (Pedro Augustinelli, Ronaldo Campos, Alex Fernandes, Paulo Pasin and Ciro Moraes) were dismissed on 23 April, following a 90-minute work stoppage held in protest against Amendment 3 imposed by the Metropolitan Company. Their dismissal constitutes a flagrant violation of the law on discrimination against unions, which protects trade union leaders and elected union representatives against such reprisals. The firing was, moreover, supposed to have been for a "legitimate reason", which means, under Brazilian law, that the workers lose all their rights.