Observation (CEACR) - adoptée 2001, publiée 90ème session CIT (2002)

1. The Committee notes the communications from the International Confederation of Free Trade Unions (ICFTU) of August 2001 and the Association of Labour Inspectors of Minas Gerais (AAIT/MG) of 27 June 2001, both of which were transmitted to the Government for its comments. The Committee also notes the communications from the Government dated 26 December 2000 and 26 November 2001.

A.  Forced labour practices

2. With regard to the existence of forced labour practices and the conditions under which they occur, the Committee notes that both national and international workers’ organizations and the Government are in agreement in recognizing the existence of such practices. All agree that despite the legislation that has been adopted to protect agricultural workers, there are still in many regions a high number of workers who, with their families, are subjected to degrading conditions of work and debt servitude.

3. In its comments, based on the reports of the Pastoral Land Commission (CPT) and Anti-Slavery International, the ICFTU refers to the release in April 2001 of 148 workers found working under conditions of forced labour in Maranhão state by the Special Group for Mobile Inspection, and indicates that some of the workers had not been paid since January 2001. On 12 June 2001, another 97 workers were released from the estates of Iolanda (24), Ediones Bannach (73) in South Pará. In its observation in 1996, the Committee had already noted that workers’ families at the Bannach estate reported the disappearance of two workers. The Committee also notes that 114 workers enslaved on the Forkilha estate were released in April-May 2001 by the Federal Police.

4. In its report, the Government indicates that in 2001 (up to October) some 960 workers had been released by the Mobile Inspection Group and emphasizes the preventive nature of inspection.

Article 25 of the Convention

B.  Penal Sanctions. Impunity of those responsible

5. In its previous observations, the Committee has recognized that the Government has adopted measures to combat forced labour, but has also expressed its concern at the failure to impose effective penalties, the impunity of those responsible, delays in judicial procedures and the absence of coordination between the various Government bodies, which all hinder the effective abolition of forced labour in Brazil. The Committee noted the adoption of Act No. 9777 establishing more severe penalties for conduct related to the practices of forced labour and requested the Government to provide detailed information on the number of persons convicted under sections 132, 149, 203 and 207 of the Penal Code.

6. With reference to the imposition of penalties, the Committee noted in its previous observation the comments made in August 2000 by the International Confederation of Free Trade Unions to the effect that Act No. 9777 was not being implemented and the action of the Mobile Inspection Group had not managed to bring to justice those responsible for having exacted forced labour. The Committee noted the statistics of the Ministry of Labour itself, which indicated that between 1996 and 1999 only four persons had been imprisoned for having imposed forced labour, despite the fact that during the same period the Mobile Inspection Group, in 25 operations, had freed 1,266 workers found working under conditions of forced labour. According to the same report, the low number of legal proceedings could be a result of the process required to be followed. The labour inspectors are only able to impose administrative sanctions when they find evidence of forced labour, and have no competence to bring criminal proceedings against those responsible. The information is transmitted to the Attorney-General, who decides on whether to initiate penal action. These procedures take a considerable time, which reduces the possibilities of finalizing legal proceedings, since the freed workers generally leave the region to return to their homes or to find other sources of work. Moreover, the fact that the freed workers are not covered by immediate protection measures exposes them to threats and intimidation discouraging them from testifying in the proceedings.

7. In its comments of August 2001, the ICFTU, based on information provided by Anti-Slavery International and the Pastoral Land Commission, reiterates that the current system does not lead to the effective penalization of those who exact forced labour. By way of illustration, it refers to the case of the Brazil Verde estate, in which the Mobile Inspection Group has detected the existence of forced labour on various occasions. Repeated denunciations in 1988, 1989, 1992, 1993, 1997, 1999 and 2000 have not resulted in the conclusion of criminal proceedings commenced in 1997, and suspended in 1999, with no subsequent action being taken to reopen proceedings. The Committee notes that a complaint has been lodged with the Organization of American States (OAS) against the Government of Brazil for negligence in investigating the practice of forced labour in the Brazil Verde estate. Between 1980 and 1998, of the 90 cases involving the use of slave labour denounced in Maranhâo, criminal proceedings were only initiated in 14 of them, and resulted in only one case of conviction.

8. The Committee has referred to the scarcity of the penalties imposed on those responsible for exacting forced labour and has considered that the activities of the labour inspectorate are not adequate in themselves to eradicate situations of forced labour, if they are not supported by a prosecutory and judicial system capable of imposing severe penalties on those responsible. The Committee notes that the praiseworthy action taken by the Labour Delegations, including inspection, has resulted in the release of hundreds of enslaved workers, but has not led to the conviction and punishment of those responsible.

9. In its previous observations, the Committee had suggested that the Government should consider the proposal by the Labour Prosecution Service concerning the need to adopt specific and unified legislation on forced labour establishing civil and penal liability and empowering the Labour Prosecution Service to instigate legal action against persons who subject workers to degrading conditions of work or slavery.

10. The Committee also requested the Government to provide detailed information on the number of cases of forced labour brought before the Federal Attorney-General’s Office by the inspection services of the Ministry of Labour and the date on which they were submitted. The Committee also requested information from the Federal Attorney-General’s Office on the progress in the processing of cases submitted by the labour inspectorate, particularly as regards the percentage of complaints which have resulted in criminal proceedings compared with the total number of complaints received through the inspection services. The Committee also requested information on the number of convictions imposed under Act No. 9777 and section 149 of the Penal Code.

11. The Government in response to these requests, refers in its report of 2001 to a single trial which is currently being held for violation of section 149 of the Labour Code, prohibiting the reduction of a person to a condition similar to that of slavery. The Committee notes that the Government refers to the release of 960 workers (in 2001) who were the victims of forced labour practices, but to a single trial being held in the same period. The Government has not indicated that any penal sanctions have been imposed for the exaction of forced labour.

12. The Committee notes that the information provided by the Government does not contain evidence of compliance with Article 25 of the Convention, under which "the illegal exaction of forced or compulsory labour shall be punishable as a penal offence" and in accordance with which the Government has to ensure that the penalties imposed by law are really adequate and strictly enforced.

13. The Committee trusts that the Government will take the necessary measures to ensure, in conformity with the Convention and the relevant provisions of the national legislation, that anyone found guilty of having exacted forced labour will be punished with penal sanctions, and that it will provide copies of relevant judicial rulings, especially in the cases mentioned above of the Brazil Verde, Edionnes Bannach and Forkilha estates.

C.  Administrative sanctions. Fines

14. The Committee notes the information provided by the Association of Labour Inspectors of Minas Gerais (AAIT/MG), according to which the Ministry of Labour, based on the opinion of the Legal Adviser’s Office of the Ministry of Labour (No. 13 of 2001), decided that the sanctions (fines) which may be imposed in the rural sector are the fines provided for in Act No. 5889/73 and not those provided for in the Consolidated Labour Laws (Diario Oficial, 1 June 2001). The fines provided for in Act No. 5889 are considerably lower than the fines imposed under the Consolidated Labour Laws for violations of the labour legislation in urban areas. The AAIT/MG illustrates this difference with an example: the fine that can be imposed on an enterprise of 200 workers in urban areas under section 47 of the Consolidated Labour Laws is R$80,506.55 (US$33,555.60). The value of the fine which can be imposed under Act No. 5889 is R$720 (US$300). In the view of the AAIT/MG, "this decision seriously affects the interests and rights of rural workers, guaranteed by the Constitution of 1988 and ignored by the Ministry of Labour". In the view of the AAIT/MG "this decision by the Ministry shows little respect for the bodies responsible for rural labour affairs and annihilates the effectiveness of the application of sanctions for violations of labour legislation in rural areas".

15. According to the AAIT/MG this decision overturns the practice introduced in 1994 by Regulatory Instruction No. 01 of 24 March 1994, based on article 7 of the National Constitution, which established equal rights for workers in the urban and rural sectors and called for the rigorous application of sanctions in administrative proceedings relating to forced labour, the exploitation of child labour and indigenous persons and threats to the life and health of workers. In its observation of 1996, the Committee noted the information provided by the Government to the effect that the above Regulatory Instruction No. 01 of 24 March 1994 inaugurated a new phase in the prevention and repression of forced labour.

16. The Committee notes the opinion of the Legal Adviser’s Office of the Ministry of Labour to the effect that the Consolidated Labour Laws apply in a subsidiary capacity to rural labour in view of the existence of specific legislation on this subject, and that violations committed by rural employers may only be punished on the basis of Act No. 5889.

17. The Committee notes that the great majority of cases of forced labour occur in the rural sector and that violations of labour provisions (such as the registration of workers) can have a direct impact on the protection of workers against situations of degrading or slave labour. The Committee notes with concern that, although the Government reiterates its commitment in its various statements continuing to take measures with a view to eradicating forced labour, particularly through the imposition of effective penalties, few penal sanctions have been imposed on those responsible and, furthermore, a step backwards has been taken with regard to the imposition of administrative sanctions in the rural sector by reducing such sanctions to insignificant fines.

18. The Committee hopes that the Government will take the necessary measures to ensure that when administrative sanctions are imposed on persons infringing labour legislation, these are at least as rigorous as those imposed on violators in the urban sector, bearing in mind that situations of forced labour are essentially found in the rural sector.

D.  Coordination between the various Government bodies

19. The Committee noted in its previous observation that the Government recognized the need for a standardized framework of legislation with a view to dynamizing procedures to combat the exaction of slave labour and the need for a joint effort by the various bodies involved (the Federal Prosecution Service, the Labour Prosecution Service, the Federal Police, labour courts and federal courts).

20. The Committee notes the Agreement ("Termo de compromisso") concluded on 9 April 2001 by the representatives of the Labour Prosecution Service of the Eighth Region, the Regional Labour Delegation of Pará and three owners of estates in the Pará region. According to the information available to the Committee, one of the signatories is the owner of estates in which cases of slave labour have been denounced. The Committee notes that, as a result of the negotiations, the competence of the Federal Police to investigate situations of slave labour, ill-treatment and failure to comply with the legislation in force has been withdrawn in the region.

21. The Committee notes with concern that during the past year, not only has there been no progress in the imposition of penalties on those responsible for exacting forced labour, but the Ministry of Labour has also decided that administrative sanctions (fines) are to be lower in the rural sector than those imposed in the urban sector. Furthermore, competence is being withdrawn from the Federal Police to take action in this field. The Committee requests the Government to provide a copy of the Agreement ("Termo de compromisso") concluded on 9 April 2001.

22. The Committee notes once again that, despite the measures taken by the Government, there remain important shortcomings in the application of the Convention. The situation of thousands of workers reduced to a condition that is similar to that of slavery in a situation characteristic of debt bondage requires measures that are commensurate with the magnitude and gravity of such situations. The Committee hopes that the Government will take the necessary measures to combat forced labour and ensure compliance with the Convention.

E.  Forced prostitution of young persons

23. The Committee notes that the Government’s report does not contain the information requested regarding the allegations that minors are forced into prostitution in the State of Rondonia, made by the International Confederation of Free Trade Unions (ICFTU) in October 1999. The Committee had recalled that work by children in conditions of debt bondage, including the forced prostitution of minors, comes within the scope of application of the Convention and it had noted the Government’s indication that it was giving priority to combating child labour.

The Committee hopes that the Government will provide information on the investigations which have taken place concerning these allegations and on any other measures which have been taken in this connection.