Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Brazil (Ratification: 1952)

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Observation

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee has updated its examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year, as well as the information at its disposal in 2019.

The Committee takes note of: (i) the observations of the National Confederation of Industry (CNI) received on 24 September 2020, in which it reiterates its previously expressed position on matters examined by the Committee in this comment; and (ii) the observations of the International Organization of Employers (IOE) received on 1 October 2020, in which the IOE reiterates its observations from the previous year and supports the observations of the CNI.

The Committee also notes: (i) the joint observations of the Single Confederation of Workers (CUT), the Confederation of Brazilian Trade Unions (CSB), and Union Forces, received on 12 June 2020; (ii) the observations of the International Trade Union Confederation (ITUC), received on 16 September 2020; (iii) the observations of Public Services International (PSI), received on 29 September 2020; (iv) the observations of the CUT, received on 1 October 2020; and (v) the observations of the National Confederation of Education Workers (CNTE), received on 1 October 2020. The Committee notes that these observations relate to subjects examined in the present comment, as well as allegations of violations of the Convention in practice, concerning which the Government has provided its comments. In this regard, the Committee notes, in the first place, the observations of the ITUC and CUT denouncing a ruling of the Higher Labour Court of September 2020 suspending the postal enterprise collective agreement and the Government’s response that there has been no violation of collective bargaining, but merely a ruling by the higher court setting aside the decision by the court of first instance issued in 2019 in the context of the ongoing collective dispute in that sector. In light of the above, the Committee requests the Government to continue providing information on the continuation of collective bargaining in the postal enterprise. The Committee also notes the allegations by the ITUC concerning acts of violence and intimidation by the police against workers and their representatives during several strikes and workers’ assemblies. The Committee notes the Government’s indications in this regard that: (i) there were three isolated cases for which the information provided by the ITUC does not on its own offer proof of the occurrence of abuses by the police or the judicial authorities; (ii) it is not possible to ascertain what actually happened without a detailed analysis of the action by the police; and (iii) the Brazilian legal system offers adequate judicial remedies to deal effectively with this type of situation. Emphasizing the importance of workers’ organizations being able to exercise their lawful activities in defence of the interests of their members in general and of collective bargaining in particular in a context free from violence, the Committee requests the Government to provide information on the results of the investigations concerning the cases referred to by the ITUC.

COVID-19 pandemic and the application of the Convention. The Committee notes the allegations by the CUT, CSB, Union Forces and PSI that provisional measures No. 927 (MP No. 927, published on 22 March 2020) and No. 936 (MP No. 936, published on 1 April 2020), adopted in response to the COVID-19 pandemic, severely prejudice the right to collective bargaining by ensuring that individual agreements between the employer and the worker prevail over collective bargaining machinery. The Committee notes that the trade union confederations allege in particular that: (i) section 2 of MP No. 927 provides for the possibility of establishing by individual agreement the adaptations necessary for the maintenance of the labour contract in the context of the health crisis, with the individual agreement prevailing over all other legislative and collective sources of labour law, with the sole exception of constitutional guarantees; (ii) MP No. 927 grants the employer the unilateral power to decide whether or not to extend the application of collective accords that have expired and which cannot be renewed due to the health crisis; (iii) MP No. 936 (relating to temporary measures for the reduction of working time and the suspension of labour contracts during the health crisis and providing for the payment of compensatory benefits to the employees concerned from public funds) gives preference to the implementation of this arrangement by individual agreement as it only envisages its activation by collective accord for a small proportion of the employed labour force and does not grant the same financial compensation for reduced working time negotiated collectively; and (iv) as MPs Nos 927 and 936 do not make the activation of the emergency measures for the reduction of working time and the suspension of labour contracts subject to the demonstration by enterprises of their necessity, they establish the conditions for a real state of emergency.

The Committee notes that the Government, while emphasizing the need for rapid and effective responses to the situation of emergency caused by the pandemic, refutes any violation of the Convention and indicates in particular that: (i) MP No. 927 has made it possible to safeguard immediately jobs that are endangered by the crisis, in a situation of great uncertainty, including the possibility to engage in collective bargaining in a context of physical distancing; (ii) MP No. 927 has enabled employers to take various temporary measures in such areas as remote working, the dates of holidays and the organization of working time; (iii) MP No. 927 did not prohibit collective bargaining during the period for which it was in force and, although section 2 gave preference to individual agreements over collective and legislative sources of labour law, the requirement to comply with labour rights endowed with constitutional protection offered substantial guarantees surrounding individual agreements; (iv) during the period that it was in force, the Federal Supreme Court, called upon to examine the constitutionality of MP No. 927, refused to order its temporary suspension, particularly because it contributed to the imperative of safeguarding jobs during a situation of emergency; and (v) it was envisaged that, in the absence of legislative approval, MP No. 927 would expire on 19 July 2020 at the latest; as a result of the absence of action by the Congress, the MP has thus no longer formed part of Brazilian legal rules since that date.

With respect to MP No. 936, the Committee takes note that the Government indicates that: (i) the MP introduced an emergency programme for the maintenance of jobs and incomes with a view to mitigating the impact of the public emergency situation; (ii) MP No. 936 provides, through individual or collective agreements, for the temporary possibility, during the situation of public emergency, to either reduce working time and remuneration in a proportional manner, or to suspend the labour contract, with such agreements giving rise, on the one hand, to a guarantee of the maintenance of the job during the period under consideration and, on the other, the payment by the Government of a job and income preservation compensation benefit calculated on the basis of the level of unemployment insurance to which the worker would be entitled; (iii) access to these emergency measures is not subject to the need to demonstrate a reduction in activity by the enterprise with a view to making the process more flexible and saving as many jobs as possible; (iv) the appeal by the trade union confederations challenging the constitutionality of MP No. 936 was also rejected; (v) MP No. 936, which has allowed over 10 million jobs to be saved, was unanimously transformed into a legislative instrument by the two chambers of the Congress through Act No. 14.020 of 2020; (vi) in contrast with the allegations of the trade union confederations, the mechanisms set out in MP No. 936 and Act No. 14.020 can be set in motion through collective bargaining for all employees, irrespective of their earnings level; (vii) however, it is only for workers whose salary is between 3,135 and 12,102 reais that the reduction in working time or the suspension of their contract must necessarily be determined through a collective accord as, under the terms of the mechanism that has been established, they are the ones who have a lower replacement rate of their salary than those at a lower remuneration scale; (viii) there is no differentiation in the level of earnings compensation benefit provided depending on whether the decision to reduce working time or suspend the contract is made by individual or collective agreement, but only the general rule that no compensation is payable for reductions in working time of under 25 per cent; and (ix) finally, to promote collective bargaining, MP No. 936 has reduced the applicable waiting periods by half and the measures taken by the executive authorities have made it possible to engage in virtual bargaining.

The Committee takes due note of the information provided by the Government and the trade union confederations. The Committee fully recognizes the exceptional circumstances experienced by the country due to the pandemic and the absolute necessity to adopt urgent measures to mitigate the economic and social effects of the resulting crisis. At the same time, the Committee recalls its general position that measures adopted during an acute crisis which set aside the application of the collective agreements that are in force must be of an exceptional nature, limited in time and provide guarantees for the workers most affected. The Committee also emphasizes that the Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205), underlines the importance of social dialogue in general and collective bargaining in particular in responding to crisis situations by encouraging the active participation of employers’ and workers’ organizations in planning, implementing and monitoring measures for recovery and resilience.

The Committee observes that MP No. 927 which, with a view to safeguarding employment, established the temporary primacy of individual agreements over collective accords and empowered the employer to take a certain number of unilateral decisions, including whether to extend or not the application of collective accords that expire during the pandemic, is no longer in force. The Committee nevertheless requests the Government to specify whether the clauses of collective agreements that may have been temporarily set aside by individual agreements concluded between the employer and the worker or by unilateral decisions of the employer taken under the terms of MP No. 927 are once again fully applicable.

With regard to MP No. 936, converted by the Congress into Act No. 14.020, the Committee understands that its objective is to allow the reduction of working time or the temporary suspension of the labour contract during the period of public emergency and to establish a temporary mechanism for the compensation of income from public funds. The Committee observes in this regard that, under the terms of the instruments referred to: (i) in the event of the reduction of working time, the hourly wage must be maintained; (ii) access to these mechanisms can be initiated either through a collective accord or an individual agreement for workers with low or very high incomes, but recourse to a collective accord is compulsory for workers with salaries in an intermediate range (around 11 per cent of the labour force, according to the Government); and (iii) when a collective accord is concluded, it prevails over individual agreements, except where the latter are more favourable to the employee. While recalling that it is the responsibility of the State under the terms of the Convention to promote collective bargaining machinery that applies to all workers irrespective of their income level, the Committee understands that the income protection mechanisms in the event of the reduction of activity established by MP No. 936 and Act No. 14.020 are not intended to set aside collective agreements and accords that are in force, but to establish a temporary system for reduced activity and income compensation that can be set in motion by individual agreement or collective accord. In these conditions, and on the basis of the principles referred to above, while duly noting the substantial efforts made by the Government to attenuate the loss of income by workers, the Committee encourages the Government to reinforce dialogue with the representative organizations of employers and workers with a view to assessing the impact of the implementation of Act No. 14.020, ensuring the application of collective agreements and accords that are in force and promoting, for all the workers covered by the Convention, the full utilization of collective bargaining machinery as a means of achieving balanced and sustainable solutions in a time of crisis. The Committee requests the Government to provide information on this subject.

The Committee also notes the allegations by the ITUC that the combined effect of the economic crisis caused by the pandemic and the possibility, arising out of the reform of labour legislation in 2017, of setting aside through collective bargaining a significant proportion of the protective provisions of the labour legislation could lead workers to accept lower terms and conditions of work and remuneration to keep their jobs. The Committee notes in this regard the Government’s reply refuting these claims and emphasizing both the guarantees and the flexibility offered by the new labour legislation with a view to preserving employment. While noting these indications, the Committee requests the Government to provide information in its next report on the number and content of the agreements and accords concluded during the period of public emergency, with an indication of the frequency of the exemptions from the protective provisions of the labour legislation that they may contain.

The Committee also notes the following observations received in 2019 relating to matters examined by the Committee in the present comment: (i) the observations of the CUT, received on 20 May 2019; (ii) the joint observations of the ITUC, the Building and Wood Workers International (BWI), Education International (EI), IndustriALL Global Union (IndustriALL), the International Transport Workers’ Federation (ITF), the International Union of Food, Agriculture, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF), PSI and UNI Global Union, received on 1 September 2019; (iii) the observations of the CNI and the National Confederation of Transport (CNT), both received on 1 September 2019; (iv) the observations of the NCST, received on 10 September 2019; and (v) the joint observations of the CUT and ITUC received on 18 September 2019.

The Committee also notes the observations of the IOE, received on 30 August 2019, containing the interventions made by employers during the Committee on the Application of Standards of the International Labour Conference in 2019 (hereinafter the Conference Committee).

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

The Committee notes the discussions in the Conference Committee in June 2019 on the application of the Convention by Brazil. The Committee notes that the Conference Committee requested the Government to: (i) continue to examine, in cooperation and consultation with the most representative employers’ and workers’ organizations, the impact of the reforms and to decide if appropriate adaptations are needed; and (ii) prepare, in consultation with the most representative employers’ and workers’ organizations, a report to be submitted to the Committee of Experts in accordance with the regular reporting cycle.

Article 1 of the Convention. Adequate protection against anti union discrimination. In its previous comments, the Committee noted that, in the context of various complaints examined by the Committee on Freedom of Association (Cases Nos 2635, 2636 and 2646) alleging acts of anti-union discrimination, the Government had indicated that, “although freedom of association is protected under the Constitution, the national legislation does not define anti-union acts, and this prevents the Ministry of Labour and Employment from taking effective preventive and repressive measures against conduct such as that reported in the present case”. In its previous comments, based on the information provided by the Government, the Committee expressed the hope that, in the context of the Labour Relations Council (CRT), it would be possible to prepare draft legislation explicitly establishing remedies and sufficiently dissuasive sanctions against acts of anti-union discrimination.

The Committee notes the Government’s indication, in its 2019 report and the supplementary information provided in 2020, that: (i) freedom of association is protected by the Constitution; (ii) although the ordinary legislation does not contain a section on anti-union acts, it does have a section on the rights of trade union members; (iii) within this part, section 543 of the Consolidation of Labour Laws (CLT) establishes the employment stability of trade union representatives and section 543(6) establishes an administrative penalty for any employer that prevents a worker from exercising her or his trade union rights, without prejudice to the right to compensation that could be obtained by the latter; and (iv) section 199 of the Penal Code criminalizes the use of threats or violence to prevent a person from joining a union. The Committee also notes the indication by the CNT that new section 510-B of the CLT attributes the function to the committees of workers’ representatives of ensuring the prevention of any discrimination, including anti-union discrimination in the enterprise. The Committee takes note of this information. It observes in this regard that: (i) by virtue of Provisional Measure No. 905 of November 2019 (MP No. 905) administrative penalties applicable in the event of non-compliance with section 543(6) of the CLT were those imposed in relation to labour law violations in general; and (ii) MP No. 905 is no longer in force as it has not been confirmed by the Congress of the Republic. Recalling the fundamental importance of ensuring effective protection against anti-union discrimination, the Committee requests the Government to take the necessary measures to ensure that the legislation explicitly establishes specific and sufficiently dissuasive sanctions against all acts of anti-union discrimination. The Committee requests the Government to report any developments in this regard.

Article 4. Promotion of collective bargaining. Relationship between collective bargaining and the law. In its 2017 and 2018 comments, the Committee noted that, under the terms of Act No. 13467, adopted on 13 November 2017, new section 611-A of the CLT introduced the general principle that collective agreements and accords prevail over the legislation, and it is therefore possible through collective bargaining to derogate from the protective provisions of the legislation, with the sole limit of the constitutional rights referred to in section 611 B of the CLT. The Committee recalled that it considered that, while targeted legislative provisions covering specific aspects of conditions of work and providing, in a circumscribed and reasoned manner, for the possibility of their replacement by means of collective bargaining may be compatible with the Convention, a legal provision providing for a general possibility to derogate from labour legislation by means of collective bargaining would be contrary to the purpose of promoting free and voluntary collective bargaining established in Article 4 of the Convention. On this basis, the Committee requested the Government, in consultation with the representative social partners, to take the necessary measures for the revision of sections 611 A and 611 B of the CLT so as to specify more precisely the situations in which clauses derogating from the legislation may be negotiated collectively, as well as the scope of such clauses.

The Committee notes the joint observations of the ITUC, BWI, EI, IndustriALL, ITF, IUF, PSI and UNI Global Union, which denounce the harmful effects deriving from the general possibility to derogate through collective bargaining from the protective provisions of the legislation. The Committee notes that the international trade union organizations consider that the new relationship between collective bargaining and the law established by Act No. 13467: (i) radically undermines the pillars on which collective bargaining machinery is established and constitutes a frontal attack on free and voluntary collective bargaining, as guaranteed by the Convention; (ii) creates the conditions for a race to the bottom between employers for the reduction of workers’ rights; and (iii) has a dissuasive effect on the exercise of collective bargaining which is reported to have resulted in a decrease of 39 per cent in the coverage rate of collective bargaining in the country. The Committee also notes the observations of the CUT, which indicates that: (i) the measures that make it possible to lower working conditions through negotiation do not promote the utilization of collective bargaining; and (ii) the reform has given rise to a significant fall in the number of collective agreements and accords concluded. The Committee also notes the observations of the NCST in this respect.

The Committee further notes the observations of the CNT and CNI, according to which sections 611-A and 611-B of the CLT: (i) offer great freedom to determine conditions of work that are favourable for all the parties through collective bargaining; (ii) are in conformity with the provisions of the Brazilian Constitution, in providing for the possibility to derogate from certain rights through a collective accord, as well as with the case law of the Supreme Federal Court, which emphasizes the need to respect agreements concluded by the social partners; and (iii) are in accordance with ILO Conventions on the subject, as indicated by the examination of the Conference Committee, which did not find any grounds for incompatibility with the Convention.

The Committee notes the information provided by the Government, which essentially reiterates the positions expressed in previous reports. The Committee notes the Government’s indication that: (i) the 2017 legislative reform reinforces the role and value of collective bargaining by increasing its material scope, which is fully in conformity with the purposes of ILO Conventions on this subject, and particularly necessary in the context of excessively detailed labour legislation; (ii) the primacy recognized for collective agreements and accords over the law reinforces the legal security of collective bargaining, which is essential in view of the traditional interference by the Brazilian judicial authorities and responds to a historical demand by the Brazilian trade union movement; (iii) section 611-A of the CLT does not in any event require unions to conclude accords which set aside protective legal provisions, and the social partners can choose to continue to be governed by these legal provisions, when that is in the interests of the parties; (iv) the fact that section 611-A of the CLT establishes a non-exhaustive list of subjects on which collective agreements and accords may not derogate from the provisions of the legislation is intended to ensure the necessary flexibility for the social partners in their negotiations; (v) the reform also ensures the protection of 30 rights set out in section 611-B of the CLT, which cannot be set aside by collective bargaining; (vi) none of the 30 legal actions initiated at the national level against Act No. 13467 have been related to collective bargaining; (vii) a situation in which collective bargaining could only lead to additional benefits for workers would discourage employers from participating in such bargaining; (viii) following a reduction of 13.1 per cent in 2018, the number of collective agreements and accords began to rise over the first four months of 2019 to come close to the levels prior to the reform; and (ix) as found by a detailed study carried out by the Institute of Economic Research Foundation (FIPE), the agreements negotiated are favourable to workers and cover more areas than before, which shows that the alleged dissuasive effect of section 611-A on collective bargaining has not occurred; and (x) the reform of the labour legislation has been welcomed by the World Bank, the Organisation of Economic Co-operation and Development, and the International Monetary Fund. Finally, the Committee notes the Government’s statements that: (i) there is no textual basis for the position of the Committee that this Convention, as well as the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154), have the general objective of promoting more favourable conditions of work than those set out in the legislation; and (ii) the reference by the Committee to the preparatory work for the Conventions is inappropriate.

The Committee notes the various elements referred to by the Government and the national and international social partners and notes that, in the supplementary information provided in 2020, the parties reiterate their previously expressed positions. The Committee notes, in the first place, the Government’s indication that, contrary to the view expressed by the trade unions, the number of collective agreements and accords concluded is in the process of reaching the levels prior to the 2017 legislative reform. The Committee emphasizes the importance of continuing to have available full information on this subject, both on the number of agreements and accords concluded and their content. The Committee also notes the reiterated view by the Government and employers’ organizations that sections 611-A and 611-B of the CLT promote collective bargaining within the meaning of the Convention by ensuring greater freedom to the negotiating parties and at the same time guaranteeing that many rights cannot be set aside through collective bargaining.

The Committee recalls in this respect that, on the basis of the detailed information provided by the Government, the Committee noted in its previous comments that: (i) the possibility of setting aside the protective provisions of the legislation through collective bargaining introduced by Act No. 13467 is indeed not absolute, as section 611-B of the CLT establishes a limitative list setting out 30 rights, based on the provisions of the Constitution of Brazil, which cannot be set aside through collective agreements or accords; and (ii) the possibilities for derogation from the legislation through collective bargaining opened up by section 611-A are however very extensive insofar as, on the one hand, the section refers explicitly to 14 points covering many aspects of the employment relationship and, on the other, this list, in contrast with the list set out in section 611-B, is solely indicative (“inter alia”), with the possibility of setting aside the protective provisions of the legislation through collective bargaining thereby being established as a general principle.

The Committee recalls that it considers that, while targeted legislative provisions covering specific aspects of conditions of work and providing, in a circumscribed and reasoned manner, for the possibility of their replacement by means of collective bargaining may be compatible with the Convention, a legal provision providing for a general possibility to set aside the protective provisions of labour legislation by means of collective bargaining would be contrary to the objective of promoting free and voluntary collective bargaining, as set out in Article 4 of the Convention. While emphasizing the importance of obtaining, insofar as possible, tripartite agreement on the basic rules of collective bargaining, the Committee therefore once again requests the Government to take the necessary measures, in consultation with the representative social partners, for the revision of sections 611-A and 611-B of the CLT so as to specify more precisely the situations in which clauses derogating from the legislation may be negotiated, as well as the scope of such clauses. Moreover, noting the Government’s indications concerning the increase in the number of collective agreements and accords concluded during the first four months of 2019, the Committee requests the Government to continue providing information on developments in the number of collective agreements and accords concluded in the country, including on the agreements and accords which contain clauses derogating from the legislation, specifying the nature and scope of such derogations.

Relationship between collective bargaining and individual contracts of employment. In its previous comments, the Committee requested the Government to take the necessary measures to ensure the conformity with the Convention of section 444 of the CLT, under the terms of which workers who have a higher education diploma and receive a wage that is at least two times higher than the ceiling for benefits under the general social security scheme may derogate from the provisions of the applicable collective agreements in their individual contracts of employment.

The Committee notes the Government’s indication in this regard that Article 4 of the Convention does not refer to individual contracts of employment and that it reiterates in the supplementary information received in 2020 that section 444 of the CLT concerns a very small group of workers, generally higher managerial personnel, representing only around 0.25 per cent of the population. The Committee also notes the position of the employers’ organizations, the CNI and CNT, which consider that the provisions of section 444 extend the possibilities for negotiation available to the workers concerned. The Committee finally notes the position expressed by the national and international trade union organizations, which call for the repeal of the provision.

The Committee recalls once again that the obligation to promote collective bargaining set out in Article 4 of the Convention requires that the individual negotiation of the terms of the contract of employment cannot derogate from the rights and guarantees provided in the applicable collective agreements, on the understanding that contracts of employment can always set out more favourable terms and conditions of work and employment. The Committee also reiterates that this principle is explicitly set out in Paragraph 3 of the Collective Agreements Recommendation, 1951 (No. 91). While emphasizing once again that collective bargaining machinery can take into account the specific needs and interests of different categories of workers who may, if they so wish, be represented by their own organizations, the Committee recalls that the present Convention is fully applicable to the workers covered by section 444 of the CLT insofar as, under the terms of Articles 5 and 6, only the armed forces and the police (Article 5) and public servants engaged in the administration of the State (Article 6) may be excluded from the scope of application of the Convention. The Committee therefore reiterates that the Convention does not allow for an exclusion from its scope of application on the basis of the level of remuneration of the workers. The Committee therefore once again requests the Government, after consultation with the representative social partners concerned, to take the necessary measures to ensure the conformity of section 444 of the CLT with the Convention. The Committee requests the Government to provide information on any progress achieved in this respect.

Scope of application of the Convention. Autonomous and self employed workers. In its comments adopted in 2017 and 2018, based on the allegations made by the trade unions that the extension of the definition of self-employed workers as a result of new section 442-B of the CLT would have the effect of excluding a significant category of workers from the rights set out in the Convention, the Committee invited the Government to hold consultations with all the parties concerned with a view to ensuring that all autonomous and self-employed workers are authorized to participate in free and voluntary collective bargaining, and to identify the appropriate adaptations to be introduced into collective bargaining procedures to facilitate their application to these categories of workers.

The Committee recalls that, irrespective of the definition of autonomous and self-employed workers stemming from section 442-B of the CLT, all workers, including autonomous and self-employed workers, are covered by the provisions of the Convention. In this respect, in 2019 the Committee welcomed the Government’s indications that, under the terms of section 511 of the CLT, which recognizes the right to organize of autonomous workers, these workers are also covered by the right to engage in collective bargaining. The Committee also noted in this regard the similar position expressed by the CNT and CNI. At the same time, the Committee notes: (i) the call made by the ITUC and seven international trade union federations in 2019 for all measures to be taken to ensure the effective access of autonomous and self-employed workers to free and voluntary collective bargaining; (ii) the indication by the CUT in its observations in 2020 that, although section 511 of the CLT recognizes the right of autonomous workers to organize, this provision does not however grant them the possibility to have access to collective bargaining machinery, particularly in view of the absence of a counterpart and, in practice, the fact that the transition from the status of employee to that of autonomous worker under the terms of section 442-B would have the effect of excluding the workers concerned from the coverage of the collective agreements in force; and (iii) the indication by the Government in its supplementary information provided in 2020 that the emergence of various non-standard forms of work is an additional challenge for collective bargaining in all countries, particularly in view of the low unionization rate. In light of the above, noting the broad scope of section 511 of the CLT, the Committee invites the Government to: (i) provide examples of collective agreements or accords negotiated by organizations representing autonomous or self-employed workers or, at the least, of which the scope of application would cover these categories of workers; and (ii) engage in consultations with all the parties concerned with the objective of identifying appropriate modifications to be introduced into collective bargaining machinery to facilitate its application to autonomous and self-employed workers. The Committee requests the Government to provide information on the progress achieved in this respect.

Relationship between the various levels of collective bargaining. The Committee previously noted that, under the terms of section 620 of the CLT, as amended by Act No. 13467, the conditions established in collective labour accords (which are concluded at the level of one or more enterprises) always prevail over those contained in collective labour agreements (which are concluded at a broader level, such as a sector of activity or an occupation). In this regard, the Committee requested the Government to indicate the manner in which respect for the commitments made by the social partners in the framework of agreements concluded at the level of the sector of activity or occupation is guaranteed and to provide information on the impact of section 620 of the CLT on recourse to the negotiation of collective agreements and collective accords, and on the overall coverage rate of collective bargaining in the country.

The Committee notes that the Government confines itself to indicating in this regard that the objective of section 620 of the CLT is to allow the conclusion of accords that are closer to the everyday reality of workers and the enterprise. The Committee also notes that the CNI and CNT consider that the primacy accorded in all cases to collective accords over collective agreements, of which the scope of application is broader, is fully in accordance with the provisions of the Convention, insofar as the latter does not establish any order of preference or hierarchy between the various bargaining levels.

The Committee recalls once again that, in accordance with Article 4 of the Convention, collective bargaining must be promoted at all levels and that, in conformity with the general principle set out in Paragraph 3(1) of Recommendation No. 91, collective agreements should bind the signatories thereto and those on whose behalf the agreement is concluded. Noting the absence of replies by the Government in this regard, the Committee once again requests the Government to: (i) indicate the manner in which respect for the commitments made by the social partners in the framework of agreements concluded at the level of the sector of activity or occupation is guaranteed; and (ii) provide information on the impact of section 620 of the CLT on recourse to the negotiation of collective agreements and collective accords, and on the overall coverage rate of collective bargaining in the country.

Article 4. Promotion of free and voluntary collective bargaining. Subjection of collective agreements to financial and economic policy. The Committee recalls that for many years it has been emphasizing the need to repeal section 623 of the CLT, under the terms of which the provisions of an agreement or accord that are in conflict with the standards governing the Government’s economic and financial policy or the wage policy that is in force shall be declared null and void. In this regard, emphasizing that Article 4 of the Convention requires the promotion of free and voluntary collective bargaining, the Committee recalled that: (i) the public authorities may establish machinery for discussion and the exchange of views to encourage the parties to collective bargaining to take voluntarily into account considerations relating to the Government’s economic and social policy and the protection of the public interest; and (ii) restrictions on collective bargaining in relation to economic matters should only be possible in exceptional circumstances, that is in the case of serious and insurmountable difficulties in preserving jobs and the continuity of enterprises and institutions. The Committee notes that, in the supplementary information provided in 2020, the Government indicates that: (i) section 623 of the CLT, adopted in 1967, is not in accordance with the objectives of the Constitution of 1988 and is therefore no longer applied; and (ii) the only limitation that is currently in force concerns the prohibition of the automatic adjustment of wages on the basis of the price index to prevent an increase in inflation, which places no restriction on wage negotiations on the basis of other factors. While taking due note of the Government’s indications, the Committee observes that the 2017 reform of the labour legislation did not remove section 623 of the CLT. The Committee therefore once again requests the Government to take the necessary measures to amend the legislation as indicated above and to provide information in its next report on any measures adopted in this regard.

The Committee is raising other matters in a request addressed directly to the Government.