Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes the detailed information provided by the Government in its report. It also notes the comments sent by the International Confederation of Free Trade Unions (ICFTU) concerning the trafficking of persons, which are examined in a direct request addressed to the Government.

Articles 1(1) and 2(1) of the Convention. Slave labour

For many years, the Committee’s comments have referred to the situation of workers who are subject to inhuman and degrading conditions of work, debt bondage or internal trafficking for the purposes of labour exploitation. Over recent years, the Committee has noted with interest a certain number of measures taken by the Government, which indicate its commitment to combating this phenomenon, referred to in Brazil as “slave labour”. Such measures have provided the country with a legal arsenal adapted to national circumstances, through the adoption of provisions clearly describing the elements which constitute the crime of “reducing a person to a condition akin to that of slavery” (section 149 of the Penal Code), a national action plan and campaign for the eradication of slave labour, and institutions which specialize in combating this phenomenon, in particular the National Commission for the Eradication of Slave Labour (CONATRAE) and the Mobile Inspection Group. Thanks to inspection visits carried out by this group, a large number of workers have been liberated from the hands of malicious and exploitative employers. These victims have been compensated and heavy fines have been imposed on the persons who exploited them. Nevertheless, despite all these measures, the phenomenon persists. Neither legislation, nor the monitoring activities of the labour inspectorate, nor the rulings handed down by the courts, appear to be sufficiently dissuasive to put an end to a practice which evidently remains lucrative. The Committee therefore asks the Government to continue doing everything within its power to remain at the front line in the battle against persons who impose forced labour on others, despite the obstacles and resistance which continue to exist in the country.

           1. Strengthening and adjustment of the legal framework

(a) Bill to amend article 243 of the Constitution (PEC No. 438/2001). The Committee previously asked the Government to take all the measures in its power to accelerate the adoption of this Bill. By providing for the expropriation without compensation of establishments in which the use of slave labour has been identified, this amendment would make it possible to impose truly dissuasive penalties on the owners of such establishments. The amendment also provides that the expropriated lands will be consigned to the agrarian reform and reserved as a priority for the persons who worked on them. The Committee notes the Government’s indication that the Bill, which has already been approved by the Senate, has been awaiting its second reading in the Chamber of Deputies since the end of 2004. The Government states that, despite its efforts in favour of the approval of this Bill, the matter is progressing slowly and is meeting strong opposition from members of the Chamber of Deputies who represent the rural sector.

(b) List of persons or entities which use or have used slave labour. Since 2003, the names of individuals or entities convicted of having used slave labour have been entered into the “Register of Employers”, a list drawn up and regularly updated by the Ministry of Labour. Every six months, the register 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 the names included on the list. Moreover, for two years following the inclusion of a name in the register, the labour inspectorate verifies the conditions of work in the establishments concerned. If there is no repeat offence 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, during the most recent review of the register in July 2007, 22 names were removed and 51 were added, which brings the total of individuals or entities listed to 192. The Committee notes with concern that, according to the information provided by the Government, this register has been contested in the courts. The National Confederation of Agriculture and Livestock (CNA) filed a complaint with the Supreme Federal Court contesting the legality and constitutionality of the list adopted by order of the Ministry of Labour. Subsequently, and while awaiting the decision of the Supreme Federal Court, a number of individuals and entities included in the register asked the courts to remove their names from the list, as a preservation measure. While certain courts agreed to these requests, the Attorney-General of the Union (AGU) contested their decisions, as it considered that the register was not illegal since it only contained the names of individuals or entities convicted by a final court decision, which was itself based on reports made following inspection visits carried out by public officials. The Government states that, in order to end this controversy, a Bill creating a register of employers who have kept workers in conditions of slavery has been tabled with a view to giving legal force to the register instituted by ministerial directive (PLS No. 25/05). 

The Government also states that the register has served as the basis for considering that an establishment has not fulfilled its social function. In one case, the land concerned was declared of social interest for the purposes of agrarian reform and the President of the Republic ordered its expropriation. Furthermore, a declaration of intent on the eradication of slave labour was signed by the Brazilian Banking Federation (FEDRABAN) in December 2005. Under this instrument, FEDRABAN undertakes to implement a programme of action to dissuade its associates from granting credit to enterprises which use slave labour.

(c) Other bills. The Government states that other bills have been tabled which aim, on the one hand, to give a legal basis to the prohibition under which individuals and entities recognized as having used slave labour cannot obtain tax incentives and credit or participate in public tendering and, on the other hand, to establish stricter penalties for the crime of reducing a person to a condition akin to slavery.

The Committee has already stated that the register is a vital tool in combating forced labour. Judging by the reactions it has generated, it seems that the objective sought by the register, i.e. to undermine directly the economic and financial interests of those who exploit slave labour, is being achieved. The Committee therefore hopes that the Government will continue to take all the necessary measures to accelerate the adoption of the bills and the draft constitutional amendment referred to above and that of any other draft legislation which contributes to meeting this objective.

           2. Prevention and awareness-raising activities

In its previous comments, the Committee noted the public awareness-raising and prevention measures taken by the Government. It noted the role played in this area by CONATRAE as a permanent entity for the coordination of all the action to be taken in the context of the National Plan of Action. It also noted the action taken within the framework of the cooperation project between the ILO and the Government – “Combating forced labour in Brazil” (2002–07).

The Committee notes that these activities continue and take a number of different forms:

–           publicity campaign for the eradication of slave labour, involving the distribution of flyers warning the population of the methods used by middlemen (“gatos”) to recruit workers and containing information on labour rights and how to report cases of slave labour;

–           programmes favouring access to credit and land for workers freed from slavery and providing such workers with agriculture-related technical assistance and training so as to promote their emancipation through production and work;

–           the “Rights Shop” initiative, the aim of which is to provide identity papers and legal assistance to rescued workers or potential victims. These “Rights Shops”, which operate as fixed or travelling units, disseminate information on workers’ rights, citizenship and the risk of enslavement, particularly in isolated areas where recourse to slave labour is widespread;

–           the “Slavery, don’t even think about it” project, the aim of which is to reduce the number of adolescents sent to Amazonian regions by mobilizing schools and teachers to play a role in the prevention of slave labour.

The Committee notes that civil society and the ILO, through its cooperation project, are often involved in these initiatives and in the organization of workshops and seminars. Furthermore, it notes with interest that the business world is also developing initiatives to promote the social responsibility of enterprises. Such initiatives, which aim to ensure that the activity, production chain or the products purchased are in no way related to slave labour, put moral and economic pressure on enterprises or farms which might be tempted to use slave labour and encourage them to adopt good labour practices. The Government refers, in particular, to the following: the National Covenant for the Eradication of Slave Labour launched in 2005, which has over 120 signatories including large supermarket chains and industrial and financial groups that have undertaken not to buy products resulting from slave labour; the Citizen Charcoal Institute, the main aim of which is to eradicate slave labour in the sector’s production chain and promote the integration of rescued workers in the labour market; and the Social Cotton Institute, which has the same objective.

The Committee welcomes the efforts of the Government and asks it to continue providing information on the measures taken to pursue activities which aim to raise awareness and mobilize the population with a view to combating slave labour. Please indicate the measures taken to support and promote the private initiatives carried out in this domain, to protect the marginalized groups who are at risk of becoming victims and to reintegrate rescued workers.

           3. Strengthening and protection of the labour inspectorate

In its previous comments, the Committee noted the central role played by the Special Mobile Inspection Group (GEFM) in combating slave labour and asked the Government to provide information on the resources made available to it to carry out its functions. The Committee also expressed its concern at the climate of intimidation and violence in which labour inspectors, attorneys and judges have to work. In its report, the Government states that, for each of its operations, the GEFM is made up of labour inspectors, federal police officers and attorneys from the Labour Prosecution Service. According to the statistics provided by the Government, since its creation in 1995, the GEFM has carried out more than 560 operations which have involved the inspection of more than 1,800 estates and led to the liberation of more than 25,000 workers. The number of operations increases each year, which suggests that the work of the GEFM is not subject to any particular restrictions or obstacles. The Government does not deny, however, that difficulties are encountered by the GEFM and the other public and private agents involved in combating slave labour. It states that it has adopted various measures to attenuate these problems, for instance, increasing the daily payments made to civil servants working in the interior of the country. With regard to the processing of complaints filed with the Labour Inspection Secretariat (SIT), the Government states that the SIT examines their relevance and decides whether an inspection must take place. The period of time between the receipt of a complaint and the inspection visit depends on the circumstances of the reported violation: the location of the enterprise, conditions of access, existence of armed militias and number of workers concerned. A computerized control system for complaints is currently being set up, which will streamline the processing of information and indirectly enhance the Government’s response capacity. As regards the protection of labour inspectors, the Government recalls that the federal police are present at each operation and can exercise the function of criminal police.

The Committee notes all the above information. It observes that, in September 2007, the secretary of the SIT decided to suspend all GEFM inspection visits. This decision was taken in response to the accusations made against the GEFM by an external temporary committee of the Senate, set up following an inspection carried out by the GEFM subsequent to which a large number of workers were freed. The Senate committee requested the opening of a police inquiry into the methods used by the GEFM at this inspection. The SIT considered that the climate of intimidation and suspicion did not permit the GEFM to carry out its activities in good conditions. The Committee notes that the GEFM resumed its inspection visits following the conclusion of a cooperation agreement between the Ministry of Labour and Employment and the AGU. The services of the AGU now provide legal assistance in respect of the activities carried out by the GEFM and assist labour inspectors in the event of their implication in any proceedings. While recalling that the GEFM is a vital link in the battle against slave labour, the Committee is concerned about the pressure it has to face and asks the Government to continue taking all measures to allow the GEFM to carry out its activities in a serene climate free from threats or political pressure. The Committee would like the Government to continue providing information on the action taken by the GEFM (number of complaints received by the SIT, number of operations carried out, number of workers rescued) and to indicate the measures taken to strengthen the intervention and reaction capacity of the GEFM.

           4. Article 25. Imposition of effective penalties

(a) Administrative sanctions. The Committee recalls that the effective imposition of penalties for violations of labour legislation is an essential element in combating slave labour in so far as slave labour is characterized by the combination of a number of violations of labour legislation which must be punished as such. Moreover, taken as a whole, they constitute a criminal offence calling for specific penalties, as examined below. The Committee notes the Government’s statement to the effect that the total of the fines imposed for violations of labour legislation is constantly increasing. It also emphasizes the role of the Labour Prosecution Service, which, within the framework of public civil action, demands, in addition to fines, the payment of compensation for moral damages suffered by the worker and for group moral damages. The Government provides statistics on all these procedures and also refers to court decisions in which record amounts of compensation have been granted. The Government considers the large fines imposed and the high amount of compensation sought for group moral damages, in combination with the register, to be highly effective since they undermine the economic advantages of using slave labour. The Committee also believes that slave labour will continue for as long as it remains lucrative. The payment of fines and compensation of dissuasive amounts, combined with the impossibility of accessing public subsidies and financing and selling their merchandise, and expropriation measures, constitute the elements of economic pressure which must be put on persons who exploit work carried out by others. The Committee therefore asks the Government to continue to ensure that these administrative penalties are dissuasive and that they are collected in practice, and to provide information in this regard.

(b) Penal sanctions. The Committee recalls that, in accordance with Article 25 of the Convention, the Government must ensure that the penalties imposed by law are really adequate and are strictly enforced. On a number of occasions it has expressed its concern regarding the low number of cases tried and sentences imposed by the criminal courts under section 149 of the Penal Code for reducing a person to a condition akin to slavery.

The Government states that, according to the Federal Attorney-General’s Office, between 1996 and 2006, there were 110 criminal prosecutions against entities accused of using slave labour. The Federal Attorney-General’s Office passed on 882 reports from the Ministry of Labour and Employment to the regional prosecutor’s offices for investigation of slave labour, 144 of them in 2005. According to the Federal Attorney-General’s Office, only three prosecutions led to convictions by the courts for exploitation of slave labour, and in one case, the prison sentence was commuted to community service. The Government, the Federal Attorney-General’s Office and the social movements believe that the main cause of the impunity prevailing in the country is the uncertainty as to which courts are the competent forum for trying crimes of exploitation of slave labour – the federal court, the ordinary courts or the labour courts. The Government states that the determination of jurisdiction is a matter to be decided by the Federal Supreme Court.

More recently, the Committee has become aware of the Supreme Labour Court Order of 30 November 2006, which determines that the competence for examining and trying the crime of reducing a person to a condition akin to slavery (section 149 of the Penal Code) lies with the federal courts. The Committee hopes that this decision will bring an end to the conflicts concerning jurisdiction which have prevented those responsible for such crimes from being tried. It would be grateful if the Government would provide information on the court decisions made on the basis of section 149 of the Penal Code by the federal courts. In this regard, the Committee emphasizes that in order to eradicate the practice of slave labour it is vital that dissuasive penal sanctions be imposed on those responsible for these crimes.