Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Employment Promotion and Protection against Unemployment Convention, 1988 (No. 168) - Brazil (Ratification: 1993)

Other comments on C168

Direct Request

2019
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Article 10(1) of the Convention. Covered contingencies. In its previous comment, the Committee requested the Government to indicate whether it envisaged introducing legislative provisions guaranteeing that a person involuntarily unemployed due, for example, to the expiry of his or her fixed-term contract or dismissed for economic reasons would, after completing the qualifying period required by the national legislation, be entitled to receive unemployment benefit. The Committee notes the information provided by the Government in its report, specifying that, as far as fixed-term contracts are concerned, if the grounds for dismissal are deemed not to constitute just cause and the worker meets the other criteria set out in the legislation (Act No. 7998 of 1990), he or she can enrol in the Unemployment Insurance Programme and claim benefits under the waiver applicable to fixed-term contracts (Consolidated Labour Act – CLT, section 481). The Committee notes, however, that the application of section 481 of the above mentioned Act is limited to specific cases, where an employment contract contains a clause entitling either party to the employment contract to cancel it before its term. The Committee recalls that, in accordance with its Article 10, the Convention covers all cases of loss of earnings due to inability to obtain suitable employment, in the case of a person capable of working, available for work and actually seeking work, and not only unemployment as a consequence of dismissal. The Committee therefore requests the Government to indicate the measures ensuring that persons who are unemployed as a result of the expiration of the term of their contract, and not only in cases of anticipated and unilateral breach of the employment contract, and that persons who are dismissed for economic reasons are entitled to unemployment benefits upon completing the statutory qualifying period as required by the Convention.

Article 11(1). Personal scope. In its previous comments, the Committee requested the Government to supply information on the total number of persons employed in the country compared to the number of those covered by all five unemployment protection schemes. The Committee notes that section 3 of Act No. 7998 of 1990 provides for unemployment benefit coverage for all workers in the private sector, and that Act No. 10208 of 2001, for the coverage for domestic workers. In addition, the data of the National Office of Registration, Occupations and Research (CGCIPE) provided by the Government, showing that the number of workers covered by unemployment insurance is equal to the total number of workers with a duly signed work card. It notes, however, that the data of the Brazilian Institute of Geography and Statistics (IGBE), based on the Ongoing National Household Sample Survey (PNADC) shows that 72 per cent of workers have duly signed work cards. Recalling that Article 11 of the Convention, which requires that the persons protected comprise prescribed classes of employees constituting not less than 85 per cent of all employees must be applied in law and in practice, the Committee requests the Government to indicate measures taken or envisaged with a view to effectively attaining the prescribed coverage.

Article 19(2)(a) and (3). Duration of unemployment benefit. In its previous comments, the Committee requested the Government to indicate the measures taken or envisaged to bring the national legislation in line with this provision of the Convention. The Committee notes, as indicated by the Government, the adoption of Act No. 13134 of 2015, amending inter alia section 4 of Act No. 7998 of 1990, resulting in the extension of the qualifying period for entitlement to an initial benefit. In application of this provision, an initial benefit is paid for four months to insured persons with 12 to 23 months of previous employment, while workers who have been employed for 24 months or more are still entitled to a five-month benefit. The Committee notes, with regret, that these legislative changes have not increased the duration of the benefit, which is still shorter than that required by the Convention. Recalling that, in accordance with Article 19(3) of the Convention, the average duration of the benefit must be at least 26 weeks if the national legislation provides that the initial duration of payment of the unemployment benefit varies with the length of the qualifying period, the Committee once again requests the Government to report measures taken or envisaged to increase the unemployment benefit duration in line with the Convention.

Article 20(f). Suspension of benefits. The Committee notes the information provided by the Government in reply to its previous request concerning the indication of the possibility to refuse an offer of vocational training, on the grounds that it is unsuitable for the professional or social status of the person concerned or for another just cause (for example family responsibilities, health, etc.) without losing the benefit.

Article 27(1). Right of complaint and appeal. The Committee notes the information provided by the Government in reply to its previous request concerning the legislative provisions that ensure the right of appeal against the decision of the Ministry to an independent body, the right to be informed in writing of the procedures available, and how these procedures operate in practice.