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Article 1 of the Convention. Information on national laws and policies. The Committee notes that the National Immigration Council is the body responsible for immigration policy in Brazil, and endeavours to promote the immigration of skilled labour with a view to facilitating development, productivity and the assimilation of technology in the country. Particular attention is paid to family reunification. The Committee also notes the various resolutions adopted by the National Immigration Council setting standards with a view to simplifying procedures for the granting of both temporary and permanent work permits to migrant workers. The Committee further notes that, although the country has traditionally been a country of immigration, since 1980 there has been an increase in emigration flows, principally to the United States, Paraguay, Japan, Portugal and the United Kingdom, and that an increasing number of women are emigrating to seek employment. In view of this new trend, a working group is currently being established to reform the mandate of the National Immigration Council so that it can also address emigration policy formulation. The Committee requests the Government to provide information on any progress achieved in relation to the reform of the mandate of the National Immigration Council and to indicate the manner in which the organizations of employers and workers have been consulted on this matter. Please also provide information on the specific measures adopted or envisaged in relation to the implementation of the relevant legislation and of the resolutions adopted by the National Immigration Council.
Article 1(c). Information concerning general agreements and special arrangements. The Committee notes the Agreement on the Reciprocal Recruitment of Nationals concluded with Portugal in 2003. The Committee also notes the Agreement on the free movement of persons concluded in the context of MERCOSUR between Brazil, Argentina, Uruguay, Paraguay, Bolivia and Chile, which has not yet entered into force, although it is being applied at the bilateral level between Brazil and Uruguay and between Brazil and Argentina. The Committee further notes that, according to the Government’s report, specific agreements on migration have been concluded with Bolivia and Suriname. The Committee would be grateful if the Government would provide information on the effect given in practice to the above agreements and also requests it to continue providing information on any general agreements and special arrangements concluded in future. Please also provide copies of the above agreements.
Articles 2, 4 and 7. Assistance services to migrant workers. The Committee notes from the Government’s report that the immigration control units of the federal police (DELEMIG) are in possession of information for migrant workers covering, in particular, the extension of residence permits and the granting of permanent residence permits. The Regional Labour Delegations and the General Coordination of Immigration of the Ministry of Labour also provide general information free of charge on work by foreign nationals in the country. The Committee further notes that in January 2008 the Ministry of Labour and Employment, with ILO support, disseminated a guide on male and female Brazilian nationals abroad with a view to providing useful information to migrant workers on their rights and duties. With reference to the increasing feminization of migration and the particularly vulnerable position in which many female migrants can find themselves, the Committee recalls that information campaigns specifically directed towards women may be appropriate (General Survey on migrant workers, 1999, paragraph 198). The Committee requests the Government to provide more detailed information on the initiatives carried out by the above bodies in accordance with Articles 2, 4 and 7 of the Convention, including indications of the measures specifically intended for migrant women.
Article 3. Misleading propaganda. The Committee notes that section 206 of the Penal Code establishes a sentence of imprisonment of between one and three years and a fine for anyone who recruits workers by deceitful means with a view to taking them abroad. The Committee requests the Government to provide relevant examples of the application of section 206 of the Penal Code in relation to misleading propaganda relating to both immigration and emigration.
Article 6. Equality of treatment. The Committee notes the Government’s indication that the national legislative framework ensures equal treatment to migrant workers in relation to that granted to national workers on all the matters enumerated in Article 6(1) of the Convention. In particular, the Committee notes that under the terms of resolution No. 79 of 9 February 2007 of the National Immigration Council, the granting of authorization to work is subject to the condition that the remuneration received by the migrant worker is not lower than that paid to nationals performing the same work. Furthermore, the Committee notes the reform process, which is still under way, of the Conditions of employment of foreign nationals (Act No. 6815/80), which is intended to clarify the rights of migrants and eliminate current restrictions on holding office in trade unions which, according to the Government’s report, are no longer applied in practice. Nevertheless, the Committee recalls that legislative provisions alone are not sufficient to ensure that migrant workers enjoy equality of treatment with nationals and that it is therefore essential that States ensure that the legislation is applied in practice, particularly by means of labour inspection services or other supervisory authorities (General Survey, op. cit., paragraph 371). The Committee therefore requests the Government to provide information on the application in practice of the principle of equality of treatment between migrant workers and nationals in relation to the matters enumerated in clauses (a), (b), (c) and (d) of Article 6(1) of the Convention and it once again asks it to indicate the extent to which the matters dealt with by the provisions of Article 6(1) of the Convention may be subject to the control of the federal administrative authorities. The Committee also requests the Government to provide information on any complaints submitted to the judicial or administrative authorities concerning the principle of equality of treatment, and their outcome. Please keep the Committee informed of the reform process that is still under way concerning the Conditions of employment of foreign nationals (Act No. 6815/80).
Non-discrimination on grounds of sex and race. The Committee notes with interest the programme “Brazil, Gender and Race” which seeks to combat discrimination against women and blacks in access to employment. The Committee also notes with interest that a specific programme is being carried out in collaboration with the ILO on domestic workers which also covers migrant women, and that a national policy has been formulated to combat the trafficking of humans, with both initiatives targeting women in particular. The Committee requests the Government to provide information on any measure adopted or envisaged focusing on migrant workers within the context of the Programme “Brazil, Gender and Race”. The Committee would also be grateful if the Government would indicate the specific activities carried out in the context of the initiatives on migrant women workers and the trafficking of humans.
MERCOSUR. With reference to its previous direct request on the development of instruments relating to migrant workers in the framework of MERCOSUR, the Committee notes that the 1998 “MERCOSUR Social and Labour Declaration”, which envisages the principle of equality of treatment between migrant workers, is being revised and that, in this context, a comparative study is being undertaken of national labour legislation in the countries concerned with a view to their future harmonization. The Committee also notes that the formulation of an Action Plan for Migrants is being examined and that a Regional Plan on Labour Inspection was adopted. The Committee further notes the formulation of a Declaration on the Rights of Workers in the MERCOSUR area respecting social security, as well as the entry into force in 2005 of the “MERCOSUR Multilateral Agreement on Social Security”. Finally, the Committee notes that, under the terms of section 8 of the Agreement on the Residence of Nationals of the States Parties to MERCOSUR, Bolivia and Chile of 2002, persons who have obtained the right of residence in one of these countries in accordance with sections 4 and 5 of the Agreement are entitled, among other rights, to have access to any activity under the same conditions as the nationals of the receiving country. The Committee asks the Government to provide information on the activities carried out in the context of the Regional Plan on Labour Inspection and their results. The Committee also requests the Government to provide information on the effect given in practice to the MERCOSUR Multilateral Agreement on Social Security and section 8 of the Agreement on the Residence of Nationals of the States Parties to MERCOSUR, Bolivia and Chile, and invites it to continue providing information on the progress achieved in relation to the formulation of the Plan of Action for Migrants and the revision of the MERCOSUR Social and Labour Declaration. Please also provide a copy of these instruments when they are adopted.
Article 8. Maintenance of the right of residence in the event of incapacity for work. The Committee notes that, according to the Government’s report, migrant workers with permanent residence permits in the country do not lose their right to residence in the event of incapacity for work caused by an accident or illness, and that they also receive benefits from the National Social Security Institute. The Committee requests the Government to indicate the relevant legislative provisions and also to indicate whether cases have occurred of expulsion on grounds of incapacity for work, whether there have been appeals to the judicial authorities and their outcome.
Annex I. Private employment agencies. The Committee notes that since the denunciation of Convention No. 96 all supervision of private employment agencies has been removed. The Committee recalls that, given the wide scope for abuse by intermediaries of prospective migrants during the recruitment procedure, it has recommended that such operations should be subject to the approval and supervision of the competent authority (General Survey, op. cit., paragraph 172). The Committee further recalls that in March 2006 the ILO published a Multilateral Framework on Labour Migration, which includes non-binding principles and guidelines for a rights-based approach to labour migration. It provides in particular for the granting of permits and the supervision of agencies for the employment of migrant workers, in accordance with the Private Employment Agencies Convention, 1997 (No. 181), and Recommendation No. 188. The Committee therefore requests the Government to consider the regulation of the operations of hiring, bringing into the country and placing migrant workers with a view to protecting them against any abuse and asks it to provide information in this respect.
Practical information. The Committee once again requests the Government to provide information on any court rulings involving questions of principle relating to the application of the Convention. The Committee also requests the Government to provide statistical data disaggregated by sex, country of origin and sector of activity for migrant workers present in Brazil, as well as for Brazilian workers abroad. Finally, the Committee would be grateful if the Government would provide information on the activities of the labour inspection services in this field, including reports and the results achieved.
The Committee notes the information supplied in the Government’s report.
1. The Committee noted in its General Survey of 1999 on migrant workers (see paragraphs 5-17) that the extent, direction and nature of international labour migration have undergone profound changes since the Convention was adopted. The Committee therefore asks the Government to provide copies of any new provisions of law or regulations adopted, together with up-to-date information on its emigration and immigration policy. It would also be grateful if the Government would state how the current trends in migration flows have affected the content and implementation of its national policy and legislation on emigration and immigration.
2. Recalling that under Article 6, paragraph 1, every State which has ratified the Convention undertakes to apply, without discrimination in respect of nationality, race, religion or sex, treatment no less favourable than that which it applies to its own nationals in respect of the matters enumerated in subparagraphs (a) to (d) of this Article, the Committee would be grateful if the Government would provide further details on the situation of migrant workers, particularly in respect of working and living conditions, work-related taxes, and access to the justice system. The Committee would also appreciate it if the Government would indicate the measures taken or envisaged to ensure that women migrant workers are treated on a par with their male counterparts, foreign or otherwise, in the abovementioned fields, in view of the growing feminization of migration for employment (see paragraphs 20-23 and 658 of the General Survey of 1999 on migrant workers). Please state to what extent the matters dealt with by the provisions of Article 6, paragraph 1, may be subject to the control of administrative authorities of the constituent states.
3. The Committee notes the information supplied by the Government in the context of MERCOSUR. It particularly notes the 1998 "MERCOSUR Social and Labour Declaration" which addresses the question of equality of treatment of migrant workers (article 4) and the "MERCOSUR Multilateral Agreement on Social Security" which seeks to provide all workers and their dependants outside their country of origin the same rights and social security benefits guaranteed to nationals, as well as recognizing rights acquired in any country of the block. The Committee asks the Government to provide any relevant information on the development and impact of these instruments. It would also be grateful if the Government would provide information regarding the implementation of the agreement on free movement of persons between the member States, which is expected to be finalized in 2006, and if it would communicate any results achieved by the Committee on Employment, Migration and Vocational Training.
4. The Committee notes that the National Immigration Council is seeking to introduce greater transparency and simplify the tasks involved in administrative procedures and that various proposals for resolutions are being examined in this regard, in line with the provisions of Annex I, Article 6 of the Convention. The Committee would be grateful if the Government would keep it informed of progress on the finalization of the resolutions referred to and supply a copy of them in its next report.
5. The Committee asks the Government to continue to provide information on Brazilian nationals working abroad as well as on the number and origin of foreigners employed in Brazil, and to communicate the results, if any, of the relevant activities of the labour inspection service, in accordance with the provisions of the Convention.
6. Finally, the Committee asks the Government to state whether courts or other tribunals have handed down decisions involving questions of principle relating to the application of the Convention. If so, please supply the text of these decisions.
The Committee notes the detailed information supplied in the Government's report.
Article 6(a) of Annex I of the Convention. The Committee notes that the National Immigration Council is in process of considering several resolutions designed to make its work more transparent and to simplify administrative procedures. It requests the Government to supply copies of the relevant texts as soon as they are adopted.
Point V of the report form. The Committee requests the Government to continue to give a general appreciation of the manner in which the Convention is applied by supplying, for instance, extracts from inspection service reports (number and type of infringements recorded, penalties imposed, etc.).
The Committee notes the information supplied by the Government.
Migrant workers in the MERCOSUR
With reference to the allegations of the Unique Workers Central (CUT) concerning the working conditions of Brazilian workers recruited by Brazilian employment agencies to work on construction sites in Argentina (La Plata and Quilmes), the Committee notes that the Government indicates that government investigations carried out on the spot have shown that the Brazilians worked in correct and adequate conditions. The Government adds that in the light of these results the CUT has withdrawn its observations.
The Committee requests the Government, in accordance with the provisions of Article 1(b) of the Convention, to continue to supply information on the movement of migrant workers and on any difficulties confronting them in their living and working conditions.
The Committee also notes the Government's statement to the effect that, despite increased flows of workers between the countries of the Southern Cone Common Market (MERCOSUR) and the concern expressed on this matter by governments and trade union organizations, to date there is no explicit form of cooperation between the immigration services of the region; each country administers its immigration services independently, in accordance with labour legislation. According to the Government, however, this matter will be discussed in MERCOSUR Subgroup 11, which deals with the employment and labour aspects involved in implementing an agreement. Furthermore, the Committee notes that the authorities concerned are studying, within the MERCOSUR framework, how to conclude an agreement allowing free circulation of persons among the member States with a view to implementing it in the year 2006.
The Committee requests the Government to continue to supply any information on the development of cooperation with the other members in regard to employment and migration services and, particularly, the results of the work done by MERCOSUR Subgroup 11, in application of Articles 6 and 10 of the Convention.
Misleading advertising
The Committee notes from the Government's report that the Brazilian legal system contains many constitutional and legislative provisions intended to suppress the various forms of misleading advertising, including those used in recruitment and employment of migrant and other workers. The Government refers specifically to the federal Constitution, which lays down in article 5, XIV, the right of access to information for all and provides legal measures to protect citizens against advertising of products, practices and services harmful to health or the environment (article 220, II). The Penal Code classifies deception among the offences set out in sections 206 and 207. The Government adds that, in order to solve the problem, the Ministry of Labour has taken measures to strengthen labour inspection of employment agencies in order to stamp out the practice of cheating workers with false promises.
The Committee requests the Government to supply copies of the labour inspection reports on the campaign against misleading advertising and on the penalties imposed on the authors or circulators of misleading advertising concerning emigration or immigration.
The Committee also draws the Government's attention to other points raised in a direct request.
The Committee refers to its previous comments in which it indicated that the Unique Workers Central (CUT) had observed that the working conditions of Brazilian workers recruited by Brazilian employment agencies to work on construction sites in Argentina (La Plata et Quilmes) were very much inferior to those of Argentine workers.
The Committee notes the statement by the CUT supplied by the Government in its report, that it was withdrawing its observation. The Committee recalls the indications in paragraphs 80 to 108 of its general report of 1986 concerning the comments of employers' and workers' organizations on the implementation of international labour standards. It recalls in particular the indication in its paragraph 91 that "once the Committee of Experts has taken note of such comments and any relevant remarks made by the Government, it decides whether any action must be taken on them and makes its own comments".
The Committee also notes the CUT's statement in its letter that the working conditions in this sector, which caused the death of a Brazilian worker, have been improved, thanks to the efforts of the Brazilian and Argentine trade union movements and the commitment of the Brazilian Ministry of Labour. The Committee asks the Government to indicate the measures taken, in the light of Article 3, paragraphs 1 and 2 (steps against misleading propaganda), and Article 7, paragraph 1 (international cooperation between services concerning migration), of the Convention and Articles 3, paragraph 3(b) (recruitment by private agencies), and 4 (free public employment service) of Annex I, which made the above improvements possible. It also asks the Government to provide information on the nature of the improvements.
[The Government is asked to report in detail in 1996.]
The Committee takes note of the observation made by the Unique Workers' Central (CUT) concerning the application of the Convention. The CUT alleges, among other things, that some Brazilian workers engaged in civil construction in La Plata (Argentina) by three Brazilian employment agencies enjoyed no insurance coverage, were inadequately lodged and had to undertake working weeks of over 44 hours, for daily wages of US$6, whereas Argentinian workers were paid US$46 per day. Furthermore, these wages were only paid upon returning to Brazil, after deduction of expenses incurred during their stay in the receiving country. Similar working conditions and discrepancies in the wage levels had been encountered by Brazilian workers on a construction site in Quilmes (Argentina).
The Committee notes that the Government has not communicated its comments on this observation and invites it to do so, taking into account especially the provisions of Article 3, paragraphs 1 and 2, and Article 7, paragraph 1, of the Convention, as well as Articles 3, paragraphs 3(b), and 4, of Annex I.
The Committee notes that the Government's report contains no reply to its previous comments. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:
Article 6, paragraph 1(b), of the Convention. In relation to the Committee's previous comments indicating that equality of treatment should be assured to all migrant workers regardless of a reciprocity agreement, the Government indicated in its reports received in 1987 and 1988 that it had decided to undertake appropriate studies to bring the legislation into conformity with the Convention on this point. In its last report the Government states that the new Constitution of 1988 guarantees equality of rights and treatment to foreign workers who enjoy the same rights in social security as nationals. The Committee trusts that the next report will contain information on the measures taken as a result of the studies mentioned earlier to guarantee to all immigrants equality of treatment in respect of unemployment and family benefits, in accordance with the Convention and the new Constitution.
Article 6, paragraph 1(b), of the Convention. In relation to the Committee's previous comments indicating that equality of treatment should be assured to all migrant workers regardless of a reciprocity agreement, the Government indicated in its reports received in 1987 and 1988 that it had decided to undertake appropriate studies to bring the legislation into harmony with the Convention on this point. In its last report the Government states that the new Constitution of 1988 guarantees equality of rights and treatment to foreign workers who enjoy the same rights in social security as nationals. The Committee trusts that the next report will contain information on the measures taken as a result of the studies mentioned earlier to guarantee to all immigrants equality of treatment in respect of unemployment and family benefits, in accordance with the Convention and the new Constitution.