Informe definitivo - Informe núm. 304, Junio 1996

1. 97. The complaint referred to in the present case is contained in a communication from the National Federation of Post, Telegraph and Assimilated Enterprise Workers (FENTECT) dated 11 December 1995. Subsequently, FENTECT submitted additional information on this matter in its communication of 12 February 1996. The Government sent its comments on these matters in a communication dated 1 March 1996.
2. 98. 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).

A. The complainant's allegations

1. 99. In its communications of 11 December 1995 and 12 February 1996, the National Federation of Post, Telegraph and Assimilated Enterprise Workers (FENTECT) alleges that the Brazilian Post and Telegraph Enterprise has violated the right to strike recognized in the Brazilian federal Constitution. The complainant organization explains that the closing date for completion of bargaining in the sector has been set at 1 December of each year so as to avoid strikes being launched in the period around Christmas and the year end when there is a large volume of work. The complainant organization also adds that it attempted to start the bargaining a month before the closing date but that the undertaking refused to negotiate for a considerable period of time until, through the intervention of the Labour Commission of the Chamber of Deputies, it accepted to commence discussions and set the first meeting for 23 November 1995, i.e. seven days before the closing date for completion of negotiations. The complainant organization states that the undertaking not only delayed the bargaining so that any strike (that might take place) would occur during the month of December but also used the press to turn public opinion against the workers, with the intention of showing that any strike implemented during this period was due to a decision taken by the workers.
2. 100. The complainant organization states that the undertaking was lacking in honesty and good faith and that it carried out anti-trade union acts. First, the complainant alleges that, on 5 December 1995, the undertaking arranged publication in the major national and regional newspapers of a press release stating that, should a strike be launched, it would hire temporary workers to take the place of the striking workers; this is contrary to the Brazilian Strikes Act (section 7) which prohibits the hiring of workers to replace those that are on strike (the complainant appends an original of this communication to its complaint). The strike finally started on 6 December. Secondly, the complainant organization declares that the undertaking published in its News Bulletin, on 8 December 1995, untrue information that the President of the Superior Labour Court had ruled the immediate and total ending of the strike, whereas, in fact, the Court's decision was aimed at ensuring that a minimum service was maintained solely for telecommunications.
3. 101. Finally, the complainant organization declares that, in certain areas, the undertaking's regional managements summoned an excessively large number of workers back to their posts so as to guarantee a minimum service, including outside the telecommunications sector, claiming falsely that this summons had been ordered by the Superior Labour Court.

B. The Government s reply

1. 102. In its communication of 22 February 1996, the Government states that, in presenting its complaint, the complainant organization has refrained from submitting information of vital importance, and declares in particular that, over a period of 21 months, the complainant organization has launched five strikes, all of which were irregular; in particular, the latest strike, called on 6 December 1995, was qualified as "abusive" by the Superior Labour Court on 18 December 1995. The Government adds that: the Brazilian Post and Telegraph Enterprise employs a total of 79,000 workers and that the number of workers taking part in the strike called by the complainant organization was insignificant; that the strike held in December 1995 was called by only 11 trade unions and that the other 18 trade unions in question preferred not to take part in the strike. The Government states that, historically, all the strikes in the sector have been called by a minority of trade union leaders who are not prepared to coexist democratically.
2. 103. As concerns the allegation about excessive delays on the part of the undertaking in commencing the bargaining process, the Government declares that: the deadline for completion of bargaining was changed (from 1 January to 1 December of each year) with the express authorization of the Ministry for State Undertaking Coordination on the basis of an agreement between the undertaking and the workers' representatives with a view to improving workers' pay conditions; that it is not certain that this occurred as the consequence of a strike having been held; and that the setting of 1 December as the deadline was favourable to the workers since they were able to put pressure on the undertaking by calling strikes in a month in which the community as a whole has urgent need of the postal system. Likewise, the Government denies that there was a premeditated delay in the start-up of bargaining. In particular, the Government states that bargaining started as soon as the undertaking had received the extensive demands made and had presented them to the competent financial supervisory bodies. The Government points out that, in view of the complexity of the demands, and the need to obtain guidance from the competent financial supervisory bodies, the undertaking found itself obliged to set a negotiation timetable, drawn up and discussed together with the complainant organization, which would not prejudice the bargaining process, so that once the process had been launched it would progress rapidly and under normal conditions. The Government points out that it would not be reasonable for the undertaking to come to an agreement with the trade unions without the prior consent of the competent financial supervisory bodies and the complainant organization was well aware of this procedure.
3. 104. The Government adds that, contrary to what had been stated by the complainant organization, the undertaking had taken, as from 11 June 1995, the measures required to finalize the negotiations with a view to drawing up a collective agreement for the period from 1 December 1995 to 30 November 1996 (in its reply, the Government appends a timetable indicating that the undertaking started discussions to commence bargaining on 11 June 1995, that it invited the complainant organization to submit its demands on 1 September 1995 and that the complainant organization did not submit its demands until the end of September 1995). The Government adds: that in view of its enormous responsibility to society, the undertaking cannot accept the whims and fancies of the complainant organization by accepting without reservation the demands put forward, including a wage increase of 100 per cent; and that, since the undertaking did not grant the requested increase, a minority decided to call a strike. The Government declares that this showed that the complainant organization had no intention of bargaining; instead, it planned only to force a situation in its favour so as to leave the negotiating table in spite of a number of specific proposals put forward by the undertaking.
4. 105. In relation to the allegation that, through certain publications, the undertaking committed anti-trade union acts, the Government states that these were administrative measures taken on account of the institution's responsibility for the mail services, with the intention of reassuring the population that efforts would be made to maintain the regularity of postal services. The Government declares: that the postal services published an announcement for the population at large stating it had bolstered its work force to deal with the large volume of mail typically processed in the end-of-year season; that the hiring of temporary workers was something that occurred each year; and that this could not be considered a reprisal against the trade unions since no dismissals took place in spite of the strike. The Government points out that, each year, the undertaking draws up a special operating programme for the months of November and December, providing for emergency transfer of workers from the administrative services to the operational services, and that the complainant organization is well aware of the operational difficulties entailed by the increase in postal service volume. The Government emphasizes that the strike was not what instigated the temporary worker hiring programme, it was only a complicating factor. Furthermore, the Government points out that legal action was taken before the Superior Labour Court and that this Court declared the strike to be abusive (the Government appends to its response a copy of the Court's findings dated 18 December 1995 in which is stated that the strike is "abusive" with the consequence that there is no obligation to pay wages for the days of strike).
5. 106. With respect to the allegation that the undertaking summoned an excessive number of striking workers, requiring that they resume work in order to maintain a minimum service, distorting the meaning of the measure stipulated by the Superior Labour Court, the Government states that, in specifying the term "telecommunications", the Court had the intention of covering all the undertaking's activities and that the summonses requiring workers to resume work were the direct outcome of the Court's decision (the Government provides a transcription of the Superior Labour Court's findings in which it states that "... The current legislation on strikes defines telecommunications as an essential activity and that there was not the slightest indication in the proceedings that the strikers had observed the relevant requirement in the Strike Act by endeavouring, in conjunction with the undertaking, to guarantee, for the duration of the strike, the provision of essential services to meet the basic needs of the community. In virtue of the above: (1) (the Court) decided that the staff members of the professional category represented by the Federation in question and by the trade unions and their members, should immediately stop their total paralysis of the telecommunications services, and should endeavour to keep at work the percentage of workers required to meet the essential needs of the community ... (2) It also decided that, to the protect the interests of the community, the undertaking should immediately summon to work, by name, a sufficient number of workers from headquarters and various agencies to faithfully implement the decisions taken under the previous item ..." Finally, the Government adds that the complainant organization has not presented evidence to support the allegations that an excessively large number of workers were summoned to resume work and that, in this respect, if the complainant organization considers that an unlawful act has been committed, it should appeal to the Superior Labour Court.

C. The Committee s conclusions

1. 107. The Committee notes that, in the present case, the complainant organization alleges that the Brazilian Post and Telegraph Enterprise has committed anti-trade union acts within the framework of a collective dispute (delays in the negotiation of a collective agreement, temporary hiring of workers when confronted with a strike and the summonsing of an excessively large number of workers to provide a minimum service).
2. 108. With respect to the allegation that the Brazilian Post and Telegraph Enterprise imposed excessive delays in negotiating a collective agreement, the Committee observes that the versions presented by the complainant organization and the Government are contradictory. Consequently, the Committee is not in a position to decide whether there was a delay attributable to the undertaking at the start of bargaining, or, as is affirmed by the Government, the undertaking is not responsible for the delays but rather that these are due to the fact that the complainant organization did not seek to negotiate (in this regard, the Government appends a timetable which indicates that the undertaking started negotiation proceedings on 11 June 1995, that it invited the complainant organization to submit its demands on 1 September 1995 and that the complainant organization presented its demands only at the end of September of the same year). In this respect, the Committee wishes to recall that, in similar situations, it has considered that "the principle that both employers and trade unions must negotiate in good faith and make efforts to arrive at an agreement, supposes avoiding any unjustified delay in the process of negotiation" (see Digest of decisions and principles of the Committee on Freedom of Association, 4th edition, 1996, para. 816).
3. 109. With respect to the allegation about the publication of a press release in newspapers by the Brazilian Post and Telegraph Enterprise on 5 December 1995 stating that it had hired workers on account of a strike, the Committee notes that the Government states that: (i) these were administrative measures taken to fulfil the postal service's responsibilities, with a view to reassuring the population about efforts to maintain the regularity of the mail services; (ii) the hiring of temporary labour is something that occurs each year and it cannot be considered as an anti-trade union reprisal, since no dismissals took place in spite of the strike; (iii) each year, the undertaking draws up a special operating programme for the months of November and December, involving the emergency transfer of workers from the administrative sector to the operational sector; and (iv) the strike was not the causative factor for the temporary worker hiring programme, but only a complicating factor.
4. 110. The Committee notes however that the text of the press release, the original of which is appended by the complainant organization to its complaint, states as follows:
   • Information of public interest. The Brazilian Post and Telegraph Enterprise gives notice that it has taken adequate and firm action to guarantee the provision of basic services to the population in view of the announced likelihood of a strike being called by various postal service workers' unions, and in view of the increase in postal traffic common during the end-of-year period. In this way, at the first sign of paralysis, it will put into effect the following contingency plan: hiring of temporary workers, in sufficient numbers ... Brasilia, 5 December 1995.
5. 111. In this respect, the Committee notes that the right to strike is recognized by the legislation for the sector in question and that the Government states that the hiring of workers during the period November-December is a normal practice; however, it should be pointed out that the press release announcing that workers would be hired in the event a strike took place was published a day before the strike was called and the bargaining had been completed. In this context, the Committee regrets that this press release can be interpreted as a threat to weaken the trade union's means of action and the impact of the strike, especially when one takes into account that this press release predates the declaration of the Superior Labour Court ordering maintenance of a minimum service (6 December 1995) and the declaration of the same Court as to the abusive nature of the strike, meaning that there is no obligation to pay the strikers' wages (18 December 1995). Under these circumstances, the Committee deplores the publication of the release in question, given that the hiring of workers could be justified only if the strikers did not maintain, for the duration of the strike, the minimum service laid down in the legislation. The Committee calls on the Government to take steps to ensure that, in the future, the Brazilian Post and Telegraph Enterprise does not have recourse to the hiring of temporary workers to replace strikers.
6. 112. Finally, with regard to the allegation that far too many striking workers were summoned to return to work so as to provide a minimum service, the Committee notes that the Government declares that: (1) the Superior Labour Court ordered that the percentage of workers necessary for meeting the community's essential needs should be kept at work; (2) the same Court also ordered the undertaking to summon to work a sufficient number of workers from the headquarters and various agencies to adequately implement the requirements of the preceding item; (3) the claimant organization has not submitted evidence to support the allegation that too many workers were summoned to resume work; and (4) if the claimant organization considers that an unlawful act has been committed, it should appeal to the Superior Labour Court.
7. 113. While the Committee considers that a minimum service may be established in the post and telecommunications sector in the event of a strike, it must emphasize that workers' and employers' organizations should participate in the determination of the extent of such a minimum service. There was no evidence of this in the present case.
8. 114. In any event, the Committee is not in a position to determine whether the stipulated minimum service was or was not excessive. The Committee has pointed out on previous occasions that "a definitive pronouncement on the basis of all factors of appreciation on whether the level of minimum services was or was not essential can be decided only by the judicial authority; this in any case supposes in particular an in-depth knowledge of the structure and operation of the undertakings and establishments concerned and of the effective impact of the strike actions" (see Digest, op. cit., para. 562). Along these lines, the Committee notes that, according to the Government, the trade union could have appealed to the Superior Labour Court that the number of workers called in to provide a minimum service was excessive.