Definitive Report - Report No 386, June 2018

1. 134. The complaint is contained in a communication from the National Federation of Unions of Prison Service Employees (FENASPEN) dated 22 March 2017.
2. 135. The Government sent its observations in communications dated 14 March and 23 May 2018.
3. 136. Brazil has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but it has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 137. In its communication of March 2017, the complainant organization alleges that three officials of its affiliated organization, the Union of Prison Security Officers of the State of Minas Gerais (SINDASP–MG), Mr Adeilton de Souza Rocha (Union President), Mr Carlos Alberto Nogueira (Executive Director of the Union) and Ms Anita Fernandes Tocafundo (Executive Director of the Union), are the subject of disciplinary proceedings for having made use of trade union leave. In this regard, the complainant organization specifically alleges that: (i) administrative proceeding No. 002/2014 was initiated after State Deputy Mr Cabo Júlio filed a complaint with the human resources department of the State Secretariat for Social Defence (SEDS), alleging irregularities in the conduct of trade union activities; (ii) this fact demonstrates the political nature of the aforementioned administrative proceedings; (iii) the three union officials who are the subject of the disciplinary proceedings have been in charge of the representation of prison security officers for many years, with Ms Anita Fernandes Tocafundo having been on full-time union leave since 2008 and Mr Adeilton de Souza Rocha and Mr Carlos Alberto Nogueira since 2012; (iv) these full time union leave arrangements were obviously set up after the relevant authorizations had been granted by the hierarchical superiors and SEDS; (v) the documents proving that the full-time union leave had been expressly authorized were duly presented during the administrative proceedings, as were the corroborating testimonies of two former Secretaries of State for Social Defence, Mr Lafayete Andrada and Mr Romulo de Carvalho Ferraz, and two former Deputy Secretaries of State for Social Defence, Mr Genilson Ribeiro Zeferino and Mr Murilo Andrade de Oliveira; (vi) the directors of the units to which the three union officials had been assigned to work and several directors of the prison administration also confirmed that they were aware that the three union officials had been authorized to take full-time union leave; and (vii) furthermore, over the years in which they were in charge of the union representation of prison officers, the three union officials were, in the exercise of their union functions, permanently in touch with the executive branch of the State of Minas Gerais and also with the human resources department of SEDS, and they never received any comments about possible irregularities in their representation work.
2. 138. The complainant organization further states that, despite all of the above, the committee in charge of the administrative proceedings produced a report stating that the authorities mentioned were not competent to grant authorization for full-time union leave. The complainant organization also states that, in addition to all the substantive arguments set out above, SINDASP–MG presented a series of procedural means of defence that demonstrated the invalidity of the administrative proceedings, but that these were not taken into consideration. These arguments included, in particular: (i) the absence in the complaint of any evidence of damage to the public finances; and (ii) the absence of any liability on the part of the trade union organization in the event that the authorizations granted by the administrative authorities were characterized by irregularities.
3. 139. The complainant organization states that, despite all of the above and despite the impeccable behaviour of the three union officials who always worked for the common good, the director of SEDS decided to impose a 15-day suspension as a sanction. The complainant organization states that it filed an appeal against that decision, which is currently under examination. More generally, the complainant organization asks institutions to avoid practices that are aimed at penalizing the regular exercise of trade union activity in the State of Minas Gerais.

B. The Government’s reply

1. 140. In a communication of 14 March 2018, the Government states that, according to the annexes to the complaint, several public servants of the State of Minas Gerais were the subject of administrative disciplinary proceedings for failing to comply with certain formal requirements regarding trade union representation, and that, as a result of these proceedings, two public servants received a sanction of suspension. The Government states that, by virtue of the federal autonomy enshrined in the Constitution of Brazil, the Ministry of Labour of the Union has no competence to interfere in the administrative proceedings under way in the different states of the Federation.
2. 141. The Government adds that: (i) according to the available documentation, the disciplinary proceedings are still before the administrative authorities; (ii) the public servants had the opportunity to exercise their right of defence in accordance with constitutional principles; (iii) according to the documents, the parties have so far not initiated judicial proceedings; (iv) the judicial branch of Brazil takes due account of ILO instruments when examining allegations of anti-union acts in order to provide adequate protection, as stated in Convention No. 98 ratified by Brazil; and (v) in the event that the parties consider themselves aggrieved by the final decision of the administrative proceedings currently under way, they will have the opportunity to take legal action.
3. 142. In its communication dated 23 May 2018, the Government transmits information provided by the State Secretariat for Social Defence in the State of Minas Gerais, which states that: (i) in the framework of the administrative disciplinary process No. 040/2015 concerning public servants Adeilton de Souza Rocha, Carlos Alberto Nogueira and Anita Fernandes Tocafundo, the commission examining the case suggested the imposition of a sanction of suspension of 15 days for not having observed the legal formalities regarding trade union representation; (ii) this decision was based on the breach of article 34 of the Constitution of the State of Minas Gerais which establishes the number of full-time union leave that can be issued based on the number of trade union members; (iii) it was found that the trade union to which the three public servants were affiliated already benefited from the maximum number of trade union leave corresponding to the number of its members, which is why the granting of additional leave would have required the authorization of the Secretary of State Planning and Management (SEPLAG); and (iv) having found that such authorization had not been granted but that the issuance of full-time union leave to the three mentioned persons originated in a decision of the State Secretary for Social Defence at the time of the facts, it was concluded that the granting of full-time trade union leave to Adeilton de Souza Rocha, Carlos Alberto Nogueira and Anita Fernandes Tocafundo was not lawful.
4. 143. The State Secretariat for Social Defence in the State of Minas Gerais further informs that public servants Adeilton de Souza Rocha and Carlos Alberto Nogueira are currently exercising their mandate in the leadership of the trade union and that Anita Fernandes Tocafundo is no longer working after having requested an early retirement.

C. The Committee’s conclusions

1. 144. The Committee notes that the present case concerns the situation of three union officials from the prison administration of the State of Minas Gerais who are the subject of disciplinary proceedings for alleged irregularities in the obtaining of full-time trade union leave. In this respect, the Committee takes note of the complainant organization’s allegation that the disciplinary proceedings against the President and the two Executive Directors of SINDASP–MG, Mr Adeilton de Souza Rocha, Ms Anita Fernandes Tocafundo and Mr Carlos Alberto Nogueira, are politically motivated as they were initiated following a complaint filed by a state deputy for Minas Gerais and that the 15-day suspension that was imposed on them is unjustified insofar as: (i) the three union officials that have occupied their positions for many years provided evidence of the authorizations concerning their full time union leave, and the corresponding testimonies of those who granted them; (ii) over the years in which they represented on a full-time basis prison officers in the State of Minas Gerais, the three union officials were permanently in touch with the executive branch of the State of Minas Gerais and with the human resources department of the penitentiary institution and they never received any comments about possible irregularities in their representation work; (iii) trade union officials should not be held liable for any mistakes made by the administration itself in the process of authorizing trade union leave; and (iv) for the reasons given above, the disciplinary sanctions were the subject of an administrative appeal that is still pending.
2. 145. The Committee also notes that the Government states that by virtue of the federal autonomy enshrined in the Constitution of Brazil, the Ministry of Labour of the Union has no competence to interfere in administrative proceedings under way in the different states of the Federation, that the right to defence was respected throughout the process and that trade union leaders subjected to sanctions can take legal action available to them, if they so desire.
3. 146. The Committee further notes that the Government submits observations of the State Secretariat for Social Defence in the State of Minas Gerais, which state that: (i) the sanction of suspension of 15 days against the three union leaders proposed by the commission responsible for the examination of the administrative disciplinary process was based on the finding that the corresponding trade union had already obtained the maximum amount of union leave recognized by the Constitution of the State; (ii) the granting of additional leave would have required an authorization of the SEPLAG, while the three public servants only obtained the authorization of the State Secretary for Social Defence at the time; (iii) therefore, the granting of paid union leave to the three union leaders was not lawful; and (iv) public servants Mr Adeilton de Souza Rocha and Mr Carlos Alberto Nogueira are currently exercising their leadership mandate in the trade union and Ms Anita Fernandes Tocafundo is not working as she had requested an early retirement.
4. 147. While noting that the Government’s reply does not specify who was responsible for obtaining the authorization from the institution competent for granting additional union leave, the Committee observes from the information provided that the trade union to which the three union leaders were affiliated already benefited from the maximum amount of paid union leave provided for in the legal system of the State of Minas Gerais and that although the entity employing the mentioned public servants granted them full-time leave, an authorization was not obtained from the institution competent to attribute additional union leave. In these circumstances, the Committee will not pursue the examination of this case.