2009 Annual Survey of violations of trade union rights - Brazil
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - Brazil, 11 June 2009, available at: http://www.refworld.org/docid/4c52cafd2d.html [accessed 30 August 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
A model for creating a larger workforce has been developed, with high increases and participation rates reported. Difficulties remained, however, as regards the quality of the work and respect for workers' representatives. The military police suppressed demonstrations in Sao Paulo, a trade union leader's home was attacked and bank workers were unfairly dismissed.
Trade union rights in law
Freedom of association: The Constitution and the Labour Code protect the right of all workers to unionise, except the military, uniformed police, fire fighters and various other state employees. The "unicidade" system stipulates, however, 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 are not legally recognised.
Law 1990/07 recognised trade union centres as bodies representing the interests of workers in general. Horizontal structures had hitherto been prohibited since the passing of decree 19770 by Getúlio Vargas in 1931, to prevent workers from uniting. 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 existing "centres" meet these criteria.
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).
Ordinance 186 of 10 April 2008, regulating applications for the registration of trade unions and changes in statutes, establishes that a judicial order is required to cancel trade union registration, but also provides for the possibility of administrative cancellation in the event that a flaw is found in the legality of the registration process.
The government had announced its intention to reform the Brazilian Labour Code to bring it into line with international labour standards, most notably ILO Convention 87. The reform has not yet materialised.
Collective bargaining: Collective bargaining is only open to those unions that are legally registered with the Ministry of Labour. Public workers, including those not employed in the administration of the state, have no collective bargaining rights.
Constitutional Amendment 45, adopted in 2004, stipulates that a consensus is required between the two parties to request judicial arbitration, thus removing the possibility of unilaterally calling on the judiciary to intervene.
There are significant impediments to the development of voluntary collective bargaining in relation to wages. Under section 623 of the Consolidated Labour Laws (CLT), an agreement can be declared null and void if it is deemed to conflict with the government's economic and financial policy, or the wage policy in force. The ILO has for many years been reminding the government that this impedes the development of voluntary collective bargaining procedures and that section 623 should be repealed.
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 the introduction of amendments to agreements, which restricts the ability of the parties to freely determine the subject and content of collective negotiations.
Right to strike: The Constitution establishes the right to strike without restriction for all workers and state officials, apart from the police and the military. It provides for the right to strike in the public services, but makes its exercise subject to a specific set of rules that have not yet been established, thus creating difficulties, in practice, for public servants wishing to exercise the right to strike.
Trade union rights in practice and violations in 2008
Background: Conditions on the labour market improved in 2008. Growth was seen in union membership rates, employment rose and access to the labour market was widened, incorporating larger numbers of women, young and rural workers. Serious problems remain, however, in the areas of equal pay, the informal economy and respect for workers' rights, especially in the private sector.
Police repression at demonstrations in Sao Paulo: Military police officers used shields, rubber bullets and tear gas to break up a demonstration held by their colleagues from the civil police force, with the backing of trade union representatives, in support of the demand for a pay rise of 15% for 2008 and increases of 12% in 2009 and 2010. They were also demanding the calling of elections for the post of chief superintendent, the establishment of promotion criteria, the reduction of the working week to 40 hours and retirement after 30 years' service. The clash left 20 people injured, some seriously.
Attacks on trade union leader and head office: The home of Joinville Frota, President of the transport union, Sindicato dos Condutores de Veículos e Trabalhadores em Empresas Transportes Rodoviários de Passageiros do Amapá (SINCOTTRAP), was completely destroyed when hit by a Molotov cocktail in the early hours of the morning on 23 August. The attack, which fortunately caused no personal injuries, took place against the background of a dispute between the union and two local bus companies over wages and health benefits. It was the last in a series of attacks against the SINCOTTRAP transport union. In April 2008, the trade union head office was set on fire and in May Frota received death threats while leading a strike against a bus company. No one has been arrested in relation to the threats or attacks.
Workers' rights violations in Ceará: The ground staff union in the state of Ceará, Sindicato dos Empregados Terrestres em Transportes Aquaviários, Operadores Portuários e Entidades Afins do Estado do Ceará (SETTAPORT-CE), filed a complaint with the ILO against Ceará Terminal Operator (CTO) over what it considers to be serious violations of workers' rights. Among the violations reported were blocking unions' access to workers, the dismissal of unionised workers, the casualisation of services, the persecution of trade union leaders, the forcing of certain workers to perform duties for which they are not skilled, the lack of additional cover for occupational hazards and the failure to pay overtime.
Bank fires workers' representative: In May, the banking institution Nossa Caixa in Sao Paulo dismissed union leader Dirceu Traversso, affiliated to the CONLUTAS centre, on grounds of frequent absences from work, despite the fact that he had documented all the authorisations given by the company for the exercise of his trade union activities. Raquel Kalcenikas, leader of the banking union Sindicato dos Bancários, expressed serious concern over the dismissal, highlighting that it could set a dangerous precedent, and demanded that the bank immediately reinstate the union representative.
Banco de Santander breaks agreement with unions: In April, Banco de Santander transferred 35 workers to various companies, such as Produban and Altec, ensuring them that they would retain the same labour rights as at the bank. The bank had also informed the union, Sindicato dos Bancários, that the workers would enjoy the same terms of employment on being transferred to another company. When the changeover came, however, a number of workers saw their rights curtailed and some were even dismissed, in breach of the agreements between the workers and the company. The banking sector union, Sindicato dos Bancários, followed up on what it considers to be a serious complaint.