Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the detailed information supplied by the Government in its report as well as the discussion which took place at the Conference Committee on the Application of Standards in June 1996.

1. In its previous observation, the Committee requested the Government to supply information regarding the measures taken, at federal level and in the various states, to follow up the recommendations made by the Committee set up by the Governing Body to examine the representation made by the Latin American Central of Workers (CLAT) under article 24 of the ILO Constitution, alleging non-observance by the Government of Brazil of Conventions Nos. 29 and 105 (document GB.264/16/7).

Further to its previous comments and to the conclusions and recommendations in the report of the Committee set up by the Governing Body to examine the representation, the Committee noted that the problems referred to constituted serious violations to Convention No. 29 since thousands of workers were in a situation of complete dependence, in conditions of debt bondage, forcibly prevented from terminating their employment relationship which they entered into under false pretences, which continued in conditions which are not in keeping with the agreements made nor in compliance with the laws of the country, and which, in addition, they cannot terminate without running the risk of suffering ill-treatment, torture, harassment and sometimes death. Furthermore, such a situation is not in conformity with the obligation contained in Article 1(b) of the Abolition of Forced Labour Convention (No. 105) that forced labour shall not be used for purposes of economic development. The Committee observed that, despite the action taken at federal level and in some states with a view to eradicating forced labour, there remain considerable shortcomings in the application of Conventions Nos. 29 and 105.

The Committee noted the establishment of the Executive Group for the Abolition of Forced Labour (GERTRAF), instituted by the President of the Republic, for the purpose, as he said, of defining really severe sanctions for anyone who makes Brazilians into slaves.

Article 25 of the Convention

2. In the conclusions of the report on the representation, the Committee observed that the allegations claiming that the proceedings initiated have been slow are well-founded and that few penal sanctions have been imposed on those responsible for the exaction of forced labour. The Committee also observed that the few people who have been convicted of exacting forced labour have been intermediaries or small owners and lease-holders, while the owners of large haciendas or enterprises using the "services" of "third-party" enterprises or individual intermediaries for production activities conducted under conditions of forced labour went unpunished. The Committee observed, moreover, that the phenomenon of "tertiarization" favoured the impunity of those who ultimately benefited most from the practice of forced labour.

The Committee noted that the conclusions relating to the matter of sanctions, according to which "although the Government's response to the allegations shows that it has taken steps to combat forced labour", there is no evidence of compliance with Article 25 of Convention No. 29 which provides that "The illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and it shall be an obligation on any Member ratifying this Convention to ensure that the penalties imposed by law are really adequate and are strictly enforced".

In this regard, the Government refers in its report to the difficulty of imposing penalties which stems from the fact that legislation has not defined the concept of slave labour of section 149 of the Penal Code; this lack of clarity regarding the meaning of slave labour has, in many cases, prevented the establishment of boundaries between slave labour properly speaking and other forms of labour which, despite being carried out in extremely arduous conditions, do not have the characteristics of slave labour.

Legislative measures

3. With a view to finding a solution to this problem of defining the various situations included in the concept of slave labour, a Bill is being examined by the GERTRAF (Executive Group for the Abolition of Forced Labour); this Bill defines degrading labour as labour which violates human dignity such as occurs in the following situations: slave labour or labour analogous to slave labour; forced labour, except in the situations envisaged in the law; the exaction of services which exceed the physical capabilities of the worker; the exaction of service from employees who are younger than the minimum age laid down in law; work carried out in unhealthy, arduous or dangerous conditions, without means of avoiding them; work carried out in conditions which generally do not comply with labour legislation, particularly the regulations concerning health, hygiene, safety and working hours; work carried out in humiliating conditions or under guard or which gives rise to corporal punishment; work done for wages lower than the minimum legal wage; the exploitation of activities prohibited by the law such as prostitution, gambling, smuggling and organized crime. The first paragraph lays down that characterization of the situations mentioned is independent of the link established between the parties, consideration being given only to the service provided, irrespective of its modalities and designation. Section 2 provides administrative penalties for anyone found responsible for exacting degrading forms of labour, without prejudice to the penal sanctions to which the situations under examination may give rise. The Bill provides that anyone who submits workers to degrading forms of work may not: obtain loans, finance, exemption from interest or similar benefits from official credit institutions and the public administration; take part in bidding at public calls for offers or conclude contracts with public bodies; receive any subsidy, incentive or benefit granted directly or indirectly by the public administration. Section 3 provides for the publication by the Ministry of Labour in the Official Gazette of a list of legal and natural persons for the purposes of applying the law.

The Ministry of Labour has also transmitted to the GERTRAF a proposal for a constitutional amendment making it possible to expropriate landowners who use degrading labour.

In connection with the Committee's observations relating to the impunity of enterprises that use a subcontracting system, another Bill, No. 929 of 1995, is before the Congress; it was formulated by the National Forum Against Rural Violence which brings together representatives of the National Confederation of Agricultural Workers (CONTAG), the Pastoral Commission on Land (CPT), the Secretariat of the Ministry of Labour Inspectorate, the Federal Public Ministry and the Public Ministry of Labour, the Commission on Human Rights and Agriculture and the Subcommission on Slave Labour of the Chamber of Deputies, and lays down prison sentences applicable for conduct provided in law, including:

- recruiting workers directly or indirectly from outside the locality in which the work will be performed, retaining from wages the cost of transport, lodging or any advance payment without guaranteeing facilities for returning to the place of origin (section 2);

- transporting workers in violation of legal regulations, thereby placing workers' life or health in danger (section 3);

- forcing workers by means of trickery (engaño), or through physical or psychological coercion, to work or to remain working in an enterprise or activity of whatever nature. The retention of documents, lack of a written contract or entry in the register and signing of blank documents are all considered trickery (section 6);

- maintaining workers in a state of slavery or conditions analogous to slavery, as well as selling, buying or taking part in transactions whose purpose is to force people to work in a state of slavery or an analogous condition.

The penalties provided are increased if the victims are minors, pregnant women, indigenous people or mentally deficient or insane.

In its report, the Government indicate that GERTRAF is studying the possibility of merging the two texts mentioned above into a single Bill.

Inspection

4. The Committee requested the Government to supply information on the measures taken to reinforce the inspection system and to ensure the systematic and diligent investigation of complaints of forced labour.

The Committee notes Ministerial Decree (Portaría) No. MTb 369 of 29 March 1996, supplied by the Government, which establishes six regional coordination bodies linked to the national coordination body and directed by the National Inspection Secretariat. According to the Government, the adoption of this regulation has allowed a process of decentralization of the Flying Inspection Service to provide greater flexibility and efficiency in the combat against slave labour.

The Committee notes with interest the information provided in relation to the 83 enterprises inspected in 1995, in different sectors and regions of the country, and the inspections carried out by regional labour delegations in the rural areas of the municipalities of Santa Terezinha (MT), Vila Rica (MT), Ariquemes, Costa Marques, Jamari, Jarú, Ji-Paraná, Sao Miguel and Montenegro (Rondonia), in the charcoal works in the north of the state of Minas Gerais and Mato Grosso del Sul, in Alagoas, especially in the sugar-cane cutting sector and in Lucas do Río Verde and Tapurah (MT). The Committee also notes with interest the activities of the Special Flying Inspection Group which has resulted in greater effectiveness of the inspection system and of the judicial proceedings initiated on the basis of the inspection reports of this Group. The Committee observes that workers' organizations such as the National Confederation of Agricultural Workers (CONTAG), the Unitarian Central of Workers (CUT) and various regional trade unions have demonstrated their support for the activities of the Special Flying Inspection Group and the persons in charge of it, who have received threats in the performance of their duties.

Slowness of proceedings

5. The Government indicates in its report that the judicial authorities are acting towards punishing cases of use of forced labour, and stresses that, in the search for justice, existing procedures must be followed.

The Committee observes that, according to the detailed information supplied by the Government, numerous trials initiated in 1994, 1993 and some in 1991 are still in progress on this matter. The Committee notes the extreme slowness of the process which, for many legislations, would amount to a denial of justice.

6. The Committee trusts that the Government will continue to take the necessary measures to ensure that, in conformity with the Convention and with the relevant provisions of national legislation, penal sanctions are imposed on anyone declared responsible for the exaction of forced labour, and that it will supply copies of the judicial decisions handed down.

The Committee also requests the Government to supply information regarding the activities carried out within the integrated programme for the repression of forced labour, under GERTRAF, and in regard to the measures taken to speed up the procedures in pending cases.

The Committee hopes that the Bills at present under examination will lead to the speedy adoption of an instrument which makes it possible to clarify the various concepts of slave labour and forced or degrading labour, and that the Government will supply a copy of the texts once they have been adopted.