Informe provisional - Informe núm. 389, Junio 2019

1. 127. The complaint is contained in two communications from the National Federation of State Judiciary Workers (FENAJUD) of 9 June and 25 September 2017, and in a joint communication from FENAJUD, Public Services International (PSI) and the Union of Judiciary Employees of Maranhão State (SINDJUS-MA) of 6 June 2018.
2. 128. The Government sent observations in a communication of 23 May 2018.
3. 129. 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 complainants’ allegations

1. 130. In its initial communication, dated 9 June 2017, FENAJUD alleges that, in the context of a union campaign carried out in mid-2015 for the application of the annual wage adjustment to account for inflation that is provided for in the Federal Constitution, the Union of Judiciary Employees of Minas Gerais State (SERJUSMIG) was prohibited by the Court of Justice of Minas Gerais (TJMG) from exercising its freedom of association and expression. The complainant alleges specifically that: (i) for 2015, the TJMG applied the wage adjustment to account for inflation only to its magistrates, without granting it to other court employees; (ii) in order to ensure the application of this adjustment, which is provided for in the Federal Constitution, SERJUSMIG launched a campaign of protest that included posting on a social network the cover of a widely circulated national magazine that reported the high wages received by the president of the TJMG and the dissemination of a poster that compared Minas Gerais magistrates with sharks; (iii) as a result of this campaign, SERJUSMIG and a number of employees faced various legal actions for defamation (one initiated by the Association of Minas Gerais Magistrates (AMAGIS) and two by the president of the TJMG), as well as administrative disciplinary proceedings; and (iv) by a preliminary decision of 3 August 2015, a Minas Gerais judge ordered SERJUSMIG to withdraw all communications that were the subject of legal action and to refrain from publishing any communications containing pejorative references to the magistrates of Minas Gerais.
2. 131. In respect of the aforementioned judicial decision, the complainant first asserts that the substance of the decision is contrary to freedom of expression, to the principles of freedom of association and to the content of ILO Conventions Nos 87 and 151. In this regard, it states that: (i) the union’s publications remained within the limits of freedom of expression; (ii) as for publishing the wages of the TJMG president, the union simply reproduced the cover of a widely circulated national magazine, which itself disseminated information that was not false (the TJMG president acknowledged the payment, specifying however that it was an occasional and not a monthly payment); and (iii) the right to criticize is inherent to freedom of association and therefore the censorship imposed by the judicial decision constitutes interference in the legitimate trade union activities of SERJUSMIG, contrary to Conventions Nos 87 and 151. To support its argument, the complainant refers to a letter from the administrative law professor Celso Antonio Bandeira de Mello, which defends the actions of SERJUSMIG in the context of the dispute in question as being entirely lawful and constitutional in nature.
3. 132. The complainant states, secondly, that the cases filed against SERJUSMIG’s campaign by AMAGIS and the TJMG president should not be examined by the judicial bodies of the State of Minas Gerais, which lack the necessary independence to settle them, given the subject of the dispute and its direct relationship to the interests of the magistrates and to the actions of that state’s judicial authority as the employer of the members of SERJUSMIG. The complainant regrets in this regard the lack of a judicial mechanism in Brazil that would allow the parties to obtain a transfer of jurisdiction in such cases.
4. 133. In a second communication, of 25 September 2017, the complainant provides additional information on the initiation of administrative disciplinary proceedings against several judiciary employees of Minas Gerais State (Jamilce Polliana Aguilar Silva, Dagma Geralda Batista, Ana Elisa Bittencourt Fonseca, André Rodrigues Damaceno, Luciene Peracci, Karina Kerley Porto, Josué Ribeiro Roberto, Darci Eduardo Dias and María Cristina Fonseca) for disseminating the images mentioned above and for using a photo of the TJMG president as their profile picture in their personal social network accounts; it alleges in this respect that several irregularities occurred. The complainant states in particular that: (i) the initial application of the TJMG president to launch disciplinary proceedings against the aforementioned persons was dismissed; (ii) the TJMG president lodged an administrative appeal against that dismissal, which was submitted to the Judicial Council of the TJMG, even though the president did not have the power to lodge such an appeal; (iii) after several procedural irregularities and, in particular, several changes in the composition of the Judicial Council with a view to obtaining a sufficient majority, on 4 July 2016 the Judicial Council accepted the appeal by majority, giving its approval for disciplinary proceedings to be initiated against four employees (Jamilce Polliana Aguilar Silva, Dagma Geralda Batista, Ana Elisa Bittencourt Fonseca and André Rodrigues Damaceno); (iv) on 7 November 2016, the Judicial Council handed down a similar decision with respect to the other aforementioned employees; and (v) pursuant to these decisions by the Judicial Council, disciplinary proceedings were initiated against the aforementioned employees, who, in turn, submitted a series of legal appeals, in particular ordinary appeals, to the Superior Court of Justice.
5. 134. In a third communication, dated 6 June 2018, FENAJUD, together with the PSI and SINDJUS-MA, present allegations concerning the dispute between the judiciary employees of Maranhão State, represented by SINDJUS-MA, and the Court of Justice of that state, concerning the non-application of the annual wage adjustment to account for inflation that is provided for in the Federal Constitution. The complainant organizations state that, after having exhausted all possibilities for dialogue and having complied with all legal requirements, SINDJUS-MA carried out a strike from October to December 2015. Despite several attempts to reach a compromise, the court refused to allow the work that had been suspended during the strike to be fulfilled through compensatory hours of work, and it docked all pay corresponding to the duration of the strike. The complainant organizations state that this position is contrary to that adopted in 2015 by the Superior Court of Justice, when a strike was carried out by the employees of that court, and that the Superior Court of Justice is of a higher instance than the Court of Justice of Maranhão State. The Superior Court of Justice, instead of docking the pay corresponding to the strike period, had decided that additional unpaid hours of work should be fulfilled to make up for lost time. The complainant organizations state that this was also the solution proposed in May 2017 in relation to the dispute that is the subject of the present complaint by the National Council of Justice, the supervisory body of the Brazilian judicial system, but that the Court of Justice of Maranhão State ignored this compromise proposal.
6. 135. The complainant organizations further state that, despite the legitimacy of the action, the court declared the strike illegal and imposed a fine of 1.5 million Brazilian reals (BRL) on the union, which amounts to more than the sum of the union’s assets and which, if applied, would threaten the very survival of the union. The complainant organizations add that this sentence poses a difficulty in that, in this case, the court handing down the sentence was also the employer of the striking workers.
7. 136. The organizations also claim that the Court of Justice of Maranhão State engages in anti union acts and practices by refusing to receive union representatives and refusing to enter into negotiations with the union. They claim that, on countless occasions, the applications for a hearing made by SINDJUS-MA were ignored by the Desembargador Corregedor (second-instance judge inspector) of that court, in an attempt to discredit SINDJUS-MA as a representative of judiciary employees.

B. The Government’s reply

1. 137. In a communication of 23 May 2018, the Government sent its reply to the allegations concerning the situation of SERJUSMIG. The Government states that: (i) AMAGIS claims that it initiated legal proceedings in 2015 on the grounds that the judiciary was the subject of a defamation campaign by SERJUSMIG and that it was for the judicial authority to determine the existence or not of excesses; (ii) the legal proceedings resulted in a preliminary decision by the judge of the 20th Civil Chamber of Belo Horizonte; and (iii) in respect of that decision, SERJUSMIG filed an application with the Federal Supreme Court requesting that the examination of the case be transferred directly to the Federal Supreme Court, a request that was not accepted by the High Court. The Government is submitting the texts of the preliminary decision of 3 August 2015 by the judge of the 20th Civil Chamber of Belo Horizonte and the October 2015 decision by the Federal Supreme Court.

C. The Committee’s conclusions

1. 138. The Committee notes that the present case refers, in the context of campaigns over wages, to allegations that the freedom of association and collective bargaining of trade union organizations of judicial employees is being hampered by the Judicial Authority of Minas Gerais and by the Judicial Authority of Maranhão State.
2. 139. With respect to the allegations concerning the Judicial Authority of Minas Gerais State, the Committee notes that the complainant organizations allege that: (i) in order to ensure the application of the wage adjustment to account for inflation that is provided for in the Federal Constitution and which, for 2015, was granted by the Judicial Authority of Minas Gerais only to the magistrates and not to other court employees, SERJUSMIG initiated a campaign of protest; (ii) the campaign included posting on a social network the cover of a widely circulated national magazine that reported the high wages received by the TJMG president and the dissemination of a poster that compared the Minas Gerais magistrates with sharks; (iii) this campaign led to various legal actions for defamation being filed against SERJUSMIG by AMAGIS and by the TJMG president, and administrative disciplinary proceedings against several employees that participated in it; (iv) in a preliminary decision of 3 August 2015, a Minas Gerais judge ordered SERJUSMIG to withdraw all communications that were the subject of legal action and to refrain from publishing any communications containing pejorative references to the magistrates of Minas Gerais; and (v) through decisions of August and November 2016, the Judicial Council of the TJMG decided in an irregular manner to initiate disciplinary proceedings against nine employees who participated in the campaign.
3. 140. In relation to the aforementioned preliminary decision by the Belo Horizonte judge, the Committee notes that the complainants allege first of all that the Judicial Authority of Minas Gerais State is acting both as judge and as party, as it is the employer of the judiciary employees who are members of SERJUSMIG, and that the magistrates of the state courts have a direct interest in the defamation proceedings initiated by AMAGIS and the TJMG president; Brazil does not have a mechanism that would allow the court’s jurisdiction to be transferred to the Federal Supreme Court in such cases. The Committee also notes in this regard the communication from the Government that contains the October 2015 decision by the Federal Supreme Court of Brazil, following the application filed by SERJUSMIG seeking to ensure that the defamation proceedings initiated against it by AMAGIS would not be examined by the courts of Minas Gerais State, but directly by the Federal Supreme Court itself. The Committee observes that, upon finding that the magistrates of the Court of Justice of Minas Gerais had not formally recused themselves, the Federal Supreme Court considered that, in accordance with the Federal Constitution, the jurisdiction of the Federal Supreme Court was not established in this case.
4. 141. The Committee takes due note of this decision of the Federal Supreme Court. The Committee emphasizes the importance that it has always attached to the fact that disputes and conflicts in trade union matters should be resolved by bodies that are independent of the parties and that, in this regard, judicial bodies usually constitute the greatest guarantee and expression of such independence. The Committee also recalls that it has drawn attention to the importance that should be attached to the principle that not only must justice be done, it must also be seen to be done [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 173]. Observing that, according to the information received, the defamation proceedings against SERJUSMIG have so far given rise only to a preliminary decision, the Committee requests the Government first of all to report on the different options in terms of remedies available to the trade union organization with respect to the substance of the decisions handed down.
5. 142. The Committee on Freedom of Association notes that the complainants further state that the substance of the preliminary decision of 3 August 2015 by the Belo Horizonte judge is contrary to the ILO Conventions and principles on freedom of association, in that: (i) the union’s publications remained within the limits of freedom of expression; (ii) the union simply reproduced the cover of a widely circulated national magazine, which itself disseminated information that was not false (the president of the TJMG acknowledged the payment, specifying however that it was an occasional and not a monthly payment); and (iii) the right to criticize is inherent to freedom of association and therefore the censorship imposed by the judicial decision constitutes interference in the legitimate trade union activities of SERJUSMIG.
6. 143. The Committee also takes note of the Government’s reply that contains the text of the preliminary decision of 3 August 2015 by the judge of the 20th Civil Chamber of Belo Horizonte. The Committee observes that, in that decision: (i) after recognizing the important role of trade unions of public servants, the judge considered that there was a certain degree of excess in the way in which SERJUSMIG had presented its claims and that an occasional payment received by the TJMG president had been presented by the union as his normal wage; and (ii) considering that the dissemination of the images and the information in question could create irreparable damage, the judge ordered SERJUSMIG to withdraw all communications that were the subject of legal action and to refrain from publishing any communications containing pejorative references to the magistrates of Minas Gerais.
7. 144. With regard to the freedom of expression of trade union organizations and its scope, the Committee recalls that its resolution of 1970 concerning trade union rights and their relation to civil liberties places special emphasis on freedom of opinion and expression, which are essential for the normal exercise of trade union rights [see Compilation, op. cit., para. 257]. The Committee also recalls that it has considered that the full exercise of trade union rights calls for a free flow of information, opinions and ideas, and to this end workers, employers and their organizations should enjoy freedom of opinion and expression at their meetings, in their publications and in the course of other trade union activities. Nevertheless, in expressing their opinions, these organizations should respect the limits of propriety and refrain from the use of insulting language [see Compilation, op. cit., para. 236].
8. 145. Noting that, according to the information received, the defamation proceedings filed in 2015 against SERJUSMIG have so far given rise only to a preliminary decision, the Committee trusts that the legal proceedings under way will be completed as soon as possible and that the aforementioned decisions by the Committee will be duly taken into consideration. The Committee requests the Government to keep it informed in this regard.
9. 146. Noting that it has not yet received the Government’s reply on the administrative disciplinary proceedings that were allegedly brought against nine judiciary employees who participated in SERJUSMIG’s campaign over wages, the Committee requests the Government to provide its observations in this regard as soon as possible.
10. 147. With regard to the part of the complaint relating to the Judicial Authority of Maranhão, the Committee notes that, in a communication of 6 June 2018, the complainant organizations allege that: (i) with a view to ensuring the application of the wage adjustment to account for inflation that is provided for in the Federal Constitution, and after having exhausted all possibilities for dialogue, SINDJUS-MA carried out a strike from October to December 2015; (ii) despite the fact that the union had complied with all the requirements and even though the Court of Justice of Maranhão State was the employer of the striking workers, that court declared the strike illegal and imposed a fine of BRL1.5 million, an amount which threatens the survival of the union; (iii) without taking into consideration the solution proposed in May 2017 in relation to the dispute that is the subject of this complaint by the National Council of Justice, the supervisory body of the Brazilian judicial system, the Court of Justice refused to allow the work that was suspended during the strike to be fulfilled through additional compensatory hours of work and it docked all pay corresponding to the duration of the strike; and (iv) the Court of Justice of Maranhão State engages in anti-union acts and practices by refusing to receive union representatives and refusing to enter into negotiations with the union, in an attempt to discredit SINDJUS-MA as a representative of judiciary employees.
11. 148. Noting that the Government has not provided its observations on the allegations concerning the dispute between SINDJUS-MA and the Judicial Authority of Maranhão State, the Committee requests the Government to send its reply in this regard as soon as possible.