Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report.

Article 4 of the Convention. Compulsory arbitration. The Committee recalls that it has been making comments for several years with regard to the possibility for one of the parties to the collective bargaining or for the authorities to resort to a "dissídio coletivo" (compulsory judicial arbitration; section 616 of the Consolidation of Labour Laws (CLT)). The Committee notes with satisfaction that the Government states that under the terms of Constitutional Amendment No. 45 of 8 December 2004 (Reform of the Judiciary; amendment of section 114), it was established that a "dissídio coletivo" may only be resorted to if both parties are in agreement (the judiciary may not be unilaterally called on to intervene). The Committee requests the Government to provide information on the application of this constitutional amendment in practice.

Furthermore, the Committee notes that, according to the Government, once the draft trade union reform, elaborated with a tripartite consensus within the National Labour Forum, has been adopted in the form of an act, a new dispute settlement system will be established, the basic principle of which will be to encourage the adoption of voluntary dispute settlement mechanisms, such as conciliation, mediation and arbitration - carried out by the judicial authority or a private arbitrator - (for example, section 188 of the draft establishes that, should collective bargaining concerning agreement on or renewal of a collective standard fail, the conflicting collective parties may, if in agreement, call upon the labour court, arbitrator or arbitration body in order to establish, amend or annul conditions of work). The Committee requests the Government to provide information in its next report on any development concerning the draft trade union reform and in particular concerning any provisions adopted regarding arbitration as a means of dispute settlement.

Right to collective bargaining in the public sector. The Committee recalls that for several years it has been referring to the need for public employees who are not engaged in the administration of the State to have the right to collective bargaining. The Committee notes that the Government states that: (1) as it stated previously, there are constitutional restrictions regarding the freedom of action of the public administration, which render collective bargaining in the public sector difficult; (2) a sectoral chamber has been created within the National Labour Forum to address issues specifically linked to the public sector, in particular, questions regarding trade union organizing, collective bargaining and dispute settlement; (3) the aim is to transfer the results of the discussions held in this chamber into legislative proposals to be transmitted to the Presidency of the Republic, before being presented as draft constitutional amendments before the National Congress; (4) in June 2003, the Permanent National Negotiation Board (MNNP) was established in the federal public service and is composed of representatives of eight ministries and all of the representative bodies of federal public servants; (5) the Board was established to ensure the democratization of labour relations through the establishment of a permanent collective bargaining system and one of its main aims is to search for negotiated solutions concerning the interests of both the public servants and the federal public administration; and (6) although restrictions remain, progress has been made concerning collective bargaining in the public sector.

The Committee requests the Government to provide information in its next report on any measures adopted to ensure that public employees who are not engaged in the administration of the State have the right to collective bargaining. In particular, the Committee requests the Government to indicate whether any constitutional amendments have been proposed in this regard, and to provide information on the issues addressed by the MNNP.

Finally, the Committee recalls that in its previous observations it also referred to the need to repeal section 623 of the Consolidation of Labour Laws (CLT), under the terms of which the provisions of an agreement or accord in conflict with the orientations of the Government’s economic and financial policy or the existing wages policy shall be declared null. The Committee notes the Government’s indication that the judicial authority has considered that awards may, in certain cases, give rise to regulations to cover a legal vacuum, but that, when a law is adopted, it prevails over all other secondary sources of law (agreements, accords, etc.), rendering null and void those provisions of the collective agreement or accord which contravene a Government prohibition or regulation, or which relate to the wage policy in force. Similarly, wage adjustments agreed on as part of collective agreements are concluded between the parties in accordance with the real situation at the time, striking a balance between the capacity of enterprises to pay and the fact that, in a new and fundamentally different socio-economic context from when an accord was concluded, it cannot be expected that a condition that is incompatible with the new situation could remain unchanged.

In this regard, the Committee emphasizes that, except in exceptional circumstances, it is the parties to the collective bargaining process who are best placed to determine wages and considers that the restriction contained in section 623 of the CLT affects the independence of the social partners during collective bargaining and impedes the development of voluntary collective bargaining procedures between employers or their organizations and organizations of workers for the establishment of employment conditions. In these conditions, the Committee once again requests the Government to take measures to repeal the aforementioned legislative provision and to inform it in its next report of any measure adopted in this respect.

The Committee is addressing a request on certain other points directly to the Government.