Demande directe (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

The Committee notes the information provided by the Government in its report and recalls that its previous comments referred to the following provisions, which are contrary to Article 3 of the Convention, namely:

(a)  the prohibition of establishing more than one trade union, whatever its level, to represent the same occupational or economic category at the same territorial location (article 8(II) of the Constitution and section 516 of the Consolidated Labour Code (CLC));

(b)  the deduction of a union contribution from the wages of workers in the various occupational categories to finance the maintenance of the confederal system of union representation (article 8(IV) of the Constitution), and the levying of compulsory union dues for all workers in a particular economic category (sections 578, 579 and 580 of the CLC); and

(c)  the requirement of five organizations at lower level in order to form federations and confederations (section 534 of the CLC).

The Committee notes the information provided by the Government that it had submitted to the National Congress a proposed constitutional amendment (PEC No. 623/98) setting out the freedom to establish trade unions, the ending of the representative monopoly based on a single trade union, the elimination of the confederal contribution, the revision of the statutory power of the labour justice system and the establishment of extrajudicial bodies for prior mediation and conciliation in individual disputes. However, the Government indicates that while the above proposal was shelved by the legislative authorities, there is now currently before the Constitutional and Justice Commission of the Federal Senate a draft Legislative Decree SF PDS 16/84 approving the text of Convention No. 87.

With regard to the prohibition of the establishment of more than one trade union organization, set out in article 8(II) of the Constitution, and section 516 of the CLC, the Committee recalls that trade union pluralism should remain possible in all cases and that the law should not institutionalize a factual monopoly; even in a situation where at some point all workers have preferred to unify the trade union movement, they should still remain free to choose unions outside the established structures should they so wish (see the 1994 General Survey on freedom of association and collective bargaining, paragraph 96).

As regards the compulsory financing of the confederal system, set out in article 8(IV) of the Constitution, the Committee once again reminds the Government that, in general, questions relating to the financing of union organizations should be governed by the rules of the respective organizations, or be the result of standards agreed in of collective agreements.

With reference to the requirement of a minimum number of five trade unions to establish a federation, provided for in section 534 of the CLC, the Committee emphasizes that, as in the present case of organizations in a single sector, such a requirement is too high and makes it difficult for trade unions to establish organizations at a higher level in full freedom, and is therefore contrary in particular to the provisions of the Convention respecting policies to facilitate the establishment and growth, on a voluntary basis, of strong and independent organizations of rural workers.

The Committee hopes that the draft Legislative Decree will be adopted in the near future and will take into account the provisions of the Convention, particularly with regard to trade union pluralism. The Committee requests the Government to keep it informed of any legislative developments and to provide a copy of the above draft text.

With regard to the information requested on the specific measures adopted to promote the development of strong and independent rural workers’ organizations (Articles 5 and 6 of the Convention), the Committee notes that the definition of rural worker contained in the CLC is insufficient to cover all rural workers and that as a result temporary workers, workers engaged in sugar-cane harvests, casual workers, tenants and sharecroppers are not covered by the definition, but that the definition of rural workers for the purposes of their coverage by trade unions set out in Legislative Decree No. 1166 of 15 April 1971 is broader and covers both individuals providing services to a rural employer in return for remuneration of any type and workers whether or not they are owners who work on their own account or with their families, with this being understood as covering the members of the family, in activities that are indispensable for their own subsistence and carried on in conditions of mutual dependence and collaboration, even though the assistance of third persons may be used. The Committee requests the Government to keep it informed of any legislative developments with regard to the definition of rural workers in the CLC.

On the subject of the policy adopted by the Government to encourage organizations of rural workers, the Committee notes with interest the establishment of the "consortium of rural employers", motivated by the need to place limits on the establishment of cooperatives of rural workers as envisaged in section 442 of the CLC, which is used to flout the labour legislation. Under this new system, rural employers endeavour to create methods of engagement that are compatible with the labour legislation and establish a system of solidarity for employers in respect of their labour obligations. The Committee requests the Government to forward a copy of Acts Nos. 8,212 and 10,256, and the manual entitled Condomínio de empregadores: Um novo modielo de contratação no meio rural, to which it refers in its report.