Observación (CEACR) - Adopción: 1999, Publicación: 88ª reunión CIT (2000)

1. Further to its previous observation, the Committee notes the information contained in the two communications addressed to the ILO by the Trade Union of Stevedores of Santos, Sao Vicente, Guarujâ and Cubatao, and the Government's detailed comments in reply to the above observations.

2. As the Committee's previous comments indicate, the issues which arise under the Convention concern the practical application of Act No. 8630 of 23 February 1993 and the implementation of an overall scheme to modernize the port sector through an Integrated Programme for the Modernization of National Ports (PIMOP). The trade unions have previously made a number of complaints concerning alleged precarious employment of casual workers who are registered despite the safeguards contained in the legislation; the failure of a number of private shipowners to negotiate and conclude collective labour agreements on port workers; the refusal of some private shipowners to have recourse to workers registered in the Manpower Management Agencies (OGMO) and finally the alleged apathy of the Government regarding these issues.

3. The Trade Union of Stevedores of Santos, Sao Vicente, Guarujâ and Cubatao in its recent communication states that the tendency for the employment of dockworkers to become more precarious has not been reversed. Furthermore, the trade unions continue to encounter the refusal of private shipowners to conclude collective agreements on port workers. The trade union adds that the information provided by the Government to the 86th Session of the International Labour Conference concerning the establishment of a "roving mediation unit" in the port sector is false and that, in practice, the supervisory body which has been established does not defend the interests of dockworkers.

4. In its detailed communication and reply, the Government indicates that its representative at the said International Labour Conference through an error of terminology and interpretation, made reference to a roving mediation unit as opposed to a roving supervisory unit called the Special Group for the Roving Supervision of Dock Labour (GEFMPT).

5. With regard to the operation of GEFMPT, the Government indicates that it was founded under the auspices of the Ministry of Labour and Employment with coordination and assistance through other bodies, and its function is to protect and promote the rights of dockworkers and one of its implicit objectives is to promote a direct understanding and communication between the parties in dispute. Further, the Government indicates that the purpose of the GEFMPT's activities has always been to serve as a means of guaranteeing workers' rights and that anybody alleged to have failed to comply can submit a complaint by administrative appeal setting out the grounds of complaint. In addition the Constitution gives the interested party the right to invoke the jurisdictional protection to protect his interests in the disputed legal situation.

6. In addition the Government refers to having stepped up its activities particularly with regard to implementing measures to encourage and promote voluntary negotiation using collective agreements. It referred to the issuing of Interim Measure No. 1.750-47 of 11 February 1999 which in conjunction with Decree No. 1.572 of 28 July 1995, regulates mediation on collective bargaining.

7. The Government also comments on why in its view collective bargaining between the worker and the employer dock union bodies does not "occur under optimum conditions". The Government cites in particular that notwithstanding the Labour Tribunal decisions which recognize the legal function and obligation of the OGMOs to allocate casual workers by shifts, the trade unions representing dockworkers still objected to this process by arguing that the legislation did not mention the term "to allocate" but instead referred to "administer the supply of labour", which they claimed was different. In order to remove any doubts as to the function of OGMOs, the Government issued Interim Measure No. 1.728-19 of 11 November 1998 which specifically referred to "the allocation of workers by shifts will be carried out by the labour administrative body". The Government views the resistance of the trade unions to such allocation as reflecting a determination on their part to maintain a monopoly over the supply of labour.

8. The Committee understands that the modernization of national ports is a difficult and delicate matter which requires dialogue between all the relevant parties. Appreciating all the matters which have been stated by the Government, the Committee again requests that, in accordance with the requirements of Article 2, paragraph 2, of the Convention, the Government indicate in its next report the manner in which the allocation of dockworkers, particularly casual workers, assures minimum periods of employment or a minimum income.

9. It also requests the Government to indicate the measures it has adopted or intends to adopt to encourage greater cooperation between port operators and their organizations and workers' organizations, in accordance with the requirements of Article 5, and the measures which have been taken or are envisaged to overcome the difficulties which have once again been alleged to exist in concluding collective labour agreements. The Committee also requests information as to the effectiveness of the GEFMPT in fulfilling its role in practice. The Government is finally requested to indicate, in accordance with Part V of the report form, the manner in which the Convention is applied in practice, with the inclusion for example of the available information on the number of dockworkers on the registers kept by the OGMOs in certain organized ports and changes in their numbers over the period covered by the report, as well as by providing examples of the disputes referred to the GEFMPT.