Observación (CEACR) - Adopción: 2009, Publicación: 99ª reunión CIT (2010)

The Committee notes the Government’s report, the comments made by the Single Confederation of Workers (CUT) and the Government’s reply to these comments, which were received in October 2008, September 2008 and March 2009, respectively.

Articles 1, paragraph 1, and 2, paragraph 1, of the Convention. Slave labour. In its previous comments, the Committee noted that, despite the series of measures adopted by the Government to combat “slave labour”, many workers continue to be victims of inhumane and degrading conditions of work, debt bondage or internal trafficking for the exploitation of their labour. The Committee emphasized in particular: the adaptation of the legislation to national circumstances with section 149 of the Penal Code, which defines the elements that constitute the crime of “reducing a person to a condition akin to that of slavery”; the activities undertaken by specialized institutions to combat this phenomenon; the action of the labour inspectorate, and particularly the Special Mobile Inspection Group, which has each year removed an increasing number of workers from these situations of exploitation; and the action by the labour courts, which have convicted persons engaging in such exploitation to substantial fines and compensation. Noting that all of these actions have failed to be sufficiently dissuasive to prevent certain employers from having recourse to this practice, which remains lucrative, the Committee requested the Government to continue taking action without respite against persons who exact forced labour by adopting measures in the fields of legislation, labour inspection and the judicial authorities.

(a). Strengthening of the legal framework. In its previous comments, the Committee noted that several Bills had been tabled with the objective of undermining the economic and financial interests of those exploiting slave labour and it requested the Government to take all possible measures to accelerate their adoption. The Committee notes that, according to the Government’s report and the comments made by the CUT, these legislative initiatives have still not been completed and that, despite the mobilization of the Government and civil society, certain members of Parliament continue to block the adoption of these texts. The Committee recalls its view that, if they are adopted, these bills would constitute significant additional tools in combating slave labour. In particular, the Bill to provide a legal basis for the prohibition of persons recognized to have used slave labour from obtaining fiscal benefits and credits or from participating in public contracts, and the Bill to increase the penalties applicable to the crime of reducing a person to a condition akin to slavery. The draft amendment to article 243 of the Constitution (PEC No. 438/2001) is also a significant initiative intended to authorize the expropriation, without compensation, of establishments in which the use of slave labour has been identified. The amendment also provides that the expropriated lands will be consigned to the agrarian reform and reserved as a priority for the persons who fell victim to slave labour at those locations.

Status and use of the list of persons who use or have used slave labour. Since 2003, the names of individuals or entities convicted by a final decision of a court of law for having used labour under conditions akin to slavery appear on a list drawn up by the Ministry of Labour and Employment. The list, which is updated every six months, is sent to various public administration bodies and to banks administering constitutional and regional financing funds so that no financial assistance, grants or public credits are granted to those included on the list. For two years following the inclusion of a name on the list, the labour inspectorate verifies the conditions of work in the establishments concerned. If there is no recividism and if the fines and the debts to the workers have been acquitted, the name may be removed from the list (Decree No. 540 of the Ministry of Labour and Employment of 15 October 2004). The Committee notes that in the latest revision of the list, in July 2009, 34 names were removed from the list, while a further 13 were added, bringing the total number of individuals or entities on the list to 175 (compared to 192 in 2007).

In its previous comments, the Committee noted with concern that the lawfulness and constitutional nature of the list had been contested, and that the courts had upheld appeals by certain employers demanding the removal of their names from the list while awaiting a final decision. The Government indicated that, with a view to bringing an end to this controversy, a Bill establishing the list of employers which have maintained workers in conditions akin to slavery had been tabled with a view to giving legal force to the list, which has up to now been drawn up by means of a Ministerial Order (PLS No. 25/05). The Committee notes that the Government has not provided information on the progress made in relation to this Bill, although it indicates that the dominant case law in regional labour courts recognizes the lawful nature of the list.

The Committee further notes, according to the information provided by the Government, that the list serves as a basis for the examination of the ownership and registration of the assets of persons who are on the list. Where an instance of unlawful occupation is noted, the assets can be immobilized with a view to agrarian reform projects. The Committee has already observed that inclusion on the list is used as a basis for considering that an establishment is not fulfilling its social purpose. In this respect, in 2004, the President of the Republic ordered the expropriation of an establishment declared of social interest for agrarian reform purposes. The Committee notes the Government’s indication that an appeal was lodged against this expropriation with the Federal Supreme Court, which has still not ruled on the appeal.

The Committee considers that the establishment of the list of persons who use or have used slave labour and the resulting measures constitute effective tools in combating slave labour. In this respect, it expresses concern at the attacks on the measures adopted by the executive authorities, both in terms of the establishment of the list itself and the penalties imposed on the basis of the list against persons whose names are on the list.

The Committee firmly hopes that the Government will take every measure to expedite the adoption of the Bills referred to above and, in particular, those intended to guarantee greater legal security, with a view to preventing the questioning of the legality of the list by offenders who want to see their names removed and so that expropriation of lands is not contested. The Committee once again emphasizes in this respect the importance of adopting the proposed amendment to the Constitution (PEC No. 438/2001) intended to authorize the expropriation, without compensation, of establishments in which the use of slave labour has been identified. In the meantime, the Committee requests the Government to indicate whether the President of the Republic has ordered further expropriation measures and whether the Federal Supreme Court has ruled on the expropriation ordered in 2004 by the President of the Republic.

(b). Strengthening of the labour inspectorate. In its previous comments, the Committee emphasized the central role of labour inspection, and particularly of the Special Mobile Inspection Group (GEFM), in combating slave labour. Observing that the GEFM is a vital link in the action to combat slave labour, the Committee expressed concern at the pressure that it has to face and asked the Government to continue to take measures to allow the GEFM to carry out its activities in a serene climate free from threats or political pressure, and to strengthen its capacity for intervention and reaction.

In its comments, the CUT recognizes the praiseworthy work carried out by the GEFM. However, the CUT notes that the labour inspectorate lacks human and material resources, and emphasizes in particular the difference between the number of complaints lodged with the Secretariat of the Labour Inspectorate (SIT) and the number of interventions carried out in practice by the inspectorate, as well as the climate of violence confronting the inspection services. In its reply, the Government indicates that it cannot be completely in disagreement with this assessment. However, measures are being taken to strengthen the labour inspection services, including training and capacity building for the staff and the improvement of the infrastructure and logistical support. The Government adds that in 2008 the GEFM was composed of nine teams, compared with four up to 2003. The primary purpose of the GEFM’s interventions is to remove enslaved workers from their working environment and the figures show that the action carried out by the GEFM has continued to be intensified with an ever greater number of establishments inspected and workers released (158 operations carried out in 2008, with 301 establishments inspected and 5,016 workers released). With regard to the reinforcement of the labour inspection services, the Government indicates that public competitions are regularly organized to recruit new labour inspectors and controllers; 192 candidates were appointed in November 2007, and the administration has called for the organization of a new public competition. From a logistical viewpoint, additional vehicles have been acquired, as well as computer and technological equipment (GPS, etc.). With regard to the difference between the number of denunciations made to the SIT and the number of interventions by the inspection services, the Government explains that the denunciations pass through a process of “filtering” to ensure the optimal use of resources and the effectiveness of inspections. Denunciations are examined on the basis of certain criteria; how recent the events are, their location, and the serious nature and precision of the allegations. The GEFM’s interventions, involving the mobilization of a high number of officials from various institutions and significant material resources, have a high financial cost and it is therefore indispensible to “filter” denunciations to ensure the success of the inspections that are carried out. Finally, the Government indicates that, despite the threats and pressure exerted by certain sectors, particularly the sugar industry, the number of inspections has remained high. It also recalls that the federal police and officials of the Office of the Attorney-General accompany labour inspectors on each intervention.

The Committee notes all the measures adopted by the Government to strengthen the labour inspection services. It encourages the Government to continue to pursue its efforts and to take every measure to ensure that the GEFM has at its disposal adequate human and material resources to move rapidly, effectively and safely throughout the national territory. The inspections carried out by the GEFM result not only in the release of workers from situations of forced labour, but also provide the judicial system with documents which serve as a basis for civil and criminal prosecutions against those responsible for these practices and are essential for the proper imposition of sanctions on perpetrators.

(c). Imposition of effective penalties. The Committee recalls that the effective imposition of penalties for violations of labour legislation is an essential element in combating slave labour, as slave labour is characterized by the accumulation of a number of violations of labour legislation which must be punished as such. Moreover, taken as a whole, these violations constitute the criminal offence of “reduction of a person to a condition akin to slavery”, which in itself gives rise to specific penalties. The Committee notes that the CUT emphasized in its comments that, to bring an end to the practice of slave labour, it is essential to recognize the inadequacy of the procedures for imposing penalties and the need to increase civil and penal sanctions.

Administrative sanctions. In its previous comments, the Committee requested the Government to continue to ensure that the administrative penalties imposed are dissuasive and effectively applied. In its report, the Government recalls that each violation of the labour legislation identified by the GEFM during inspections gives rise to the imposition of fines. Furthermore, the Office of the Attorney-General for Labour, in the context of the civil action initiated, in addition to fines, calls for the payment of compensation for material damages for the prejudice suffered by the worker and for collective moral damages. The Government considers that the fines and compensation damages that are sought, combined with the establishment of the list of persons who have used slave labour, constitute effective and dissuasive instruments in the action to combat slave labour, as they make the exploitation of slave labour economically unviable. The Committee notes this information and requests the Government to continue ensuring that the fines and compensation imposed are collected in practice. It encourages the Government to take every measure available to it and to provide support for the measures adopted by the judicial authorities and civil society to continue to exert economic pressure on those who exploit the labour of others, including: the payment of dissuasive fines and compensation, the removal of access to public subsidies and financing, prevention of the sale of the goods produced, and the expropriation of lands.

Penal sanctions.  For many years, the Committee has been concerned with the very low number of convictions by the criminal courts under section 149 of the Penal Code for the reduction of a person to a condition akin to slavery. In its previous comments, the Committee noted that, by deciding that competence for examining and trying the crime of the reduction of a person to a condition akin to slavery lies with the federal courts, the ruling of the Federal Supreme Court (STF) of 30 November 2006 brought an end to the conflicts concerning jurisdiction which had prevented or delayed the trial of those responsible for such crimes. In its report, the Government indicates that the ruling by the STF opens the way to an increase in the number of convictions for this crime. During 2008, the Government refers to two convictions; one involving a sentence of five years of imprisonment by the Federal Court of Maraba and another sentence of 14 years of imprisonment by the Federal Court of Maranhão. The Government adds that, despite the controversy relating to jurisdiction, the Office of the Federal Attorney-General has never stopped bringing charges for these crimes. The Committee notes this information and hopes that the Government will be able to report other criminal convictions in its next report. In view of the number of situations of slave labour identified by the labour inspectorate in recent years and the practice followed by the Office of the Federal Attorney-General of requesting the competent jurisdiction to examine the charges (denunciations) with a view to starting a criminal trial, the Committee trusts that these cases will finally be resolved so that those who have imposed forced labour are convicted and really effective penalties imposed, in accordance with Article 25 of the Convention. The Committee considers that, in order to reduce the incidence of slave labour, it is indispensible, on the one hand, to undermine the economic interests of those who exploit the labour of others and, on the other hand, to impose the sentences of imprisonment envisaged in section 149 of the Labour Code in view of their dissuasive nature and their symbolic value.

(d). Reintegration of victims. In its previous comments, the Committee noted that the workers released following the GEFM’s inspections were entitled to an unemployment benefit in the form of three payments each corresponding to a minimum wage. It notes that the Government refers in its report to a series of measures to facilitate the integration of released workers: (a) the priority inclusion of these workers in the federal programme for the redistribution of income “Bolsa -familia”; if they are not eligible, the workers receive the minimum integration income; in 2007, the beneficiaries included 1,453 released workers; (b) inclusion of the workers in the “literate Brazil” programme; (c) the launching in November 2008 in the context of the national employment system of a pilot project for the placement in employment of rural workers in zones particularly affected by slave labour. This project is intended to replace the role of the middlemen (gatos), who are the first link in the chain of slave labour. In the first place, the workers are informed of their rights and conditions of work and are offered training. Secondly, employers are put into contact with workers with various profiles. The project will also enable the Ministry of Labour and Employment to understand the specific characteristics of employment placement for rural workers. The Committee notes these initiatives and requests the Government to continue providing information on the measures adopted for the reintegration of victims and the results achieved. The provision of material and financial support for victims is key in order to prevent them from returning to a situation of vulnerability in which they would once again be exploited for their labour. Please also provide information on the measures adopted to raise the awareness of workers of the risks involved in the regions concerned.