Observation (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Brésil (Ratification: 1952)

Autre commentaire sur C098

Observation

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The Committee notes the following observations relating to matters examined by the Committee in the present comment: (i) the observations of the Single Confederation of Workers (CUT), received on 20 May 2019; (ii) the joint observations of the International Trade Union Confederation (ITUC), the Building and Wood Workers International (BWI), Education International (EI), IndustriALL Global Union (IndustriALL), the International Transport Workers’ Federation (ITF), the International Union of Food, Agriculture, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF), Public Services International (PSI) and UNI Global Union, received on 1 September 2019; (iii) the observations of the National Confederation of Industry (CNI) and the National Confederation of Transport (CNT), both received on 1 September 2019; (iv) the observations of the New Workers’ Trade Union Confederation (NCST), received on 10 September 2019; and (v) the joint observations of the CUT and ITUC received on 18 September 2019.

The Committee also notes the observations of the International Organisation of Employers (IOE), received on 30 August 2019, containing the interventions made by employers during the Committee on the Application of Standards of the International Labour Conference in 2019 (hereinafter the Conference Committee).

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 108th Session, June 2019)

The Committee notes the discussions in the Conference Committee in June 2019 on the application of the Convention by Brazil. The Committee notes that the Conference Committee requested the Government to: (i) continue to examine, in cooperation and consultation with the most representative employers’ and workers’ organizations, the impact of the reforms and to decide if appropriate adaptations are needed; and (ii) prepare, in consultation with the most representative employers’ and workers’ organizations, a report to be submitted to the Committee of Experts in accordance with the regular reporting cycle.

Article 1 of the Convention. Adequate protection against anti union discrimination. In its previous comments, the Committee noted that, in the context of various complaints examined by the Committee on Freedom of Association (Cases Nos 2635, 2636 and 2646) alleging acts of anti-union discrimination, the Government had indicated that, “although freedom of association is protected under the Constitution, the national legislation does not define anti-union acts, and this prevents the Ministry of Labour and Employment from taking effective preventive and repressive measures against conduct such as that reported in the present case”. In its previous comments, based on the information provided by the Government, the Committee expressed the hope that, in the context of the Labour Relations Council (CRT), it would be possible to prepare draft legislation explicitly establishing remedies and sufficiently dissuasive sanctions against acts of anti-union discrimination.

The Committee notes the Government’s indication that: (i) freedom of association is protected by the Constitution; (ii) although the ordinary legislation does not contain a section on anti-union acts, it does have a section on the rights of trade union members; and (iii) within this part, section 543 of the Consolidation of Labour Laws (CLT) establishes the provisional stability of employment of trade union representatives and section 543(6) establishes an administrative penalty for any employer that prevents a worker from exercising her or his trade union rights, without prejudice to the right to compensation that could be obtained by the latter. The Committee also notes the indication by the CNT that new section 510-B of the CLT attributes the function to the committees of workers’ representatives of ensuring the prevention of any discrimination, including anti-union discrimination in the enterprise. The Committee takes note of this information. It observes in this regard that: (i) the administrative penalties applicable in the event of non-compliance with section 543(6) of the CLT are currently established by the Provisional Measure No. 905 of November 2019 (a legislative measure adopted by the President which may remain in force for a maximum period of 120 days without the approval of the National Congress); (ii) the fines for anti-union acts prohibited under section 543(6) of the CLT are those imposed in relation to labour law violations in general; (iii) their amounts range from 1,000 to 100,000 Brazilian reals depending on whether the offences are of a mild, medium, serious or very serious; and (iv) the legislation does not specify the type of offences that are applicable to acts of anti-union discrimination. Recalling the fundamental importance of ensuring effective protection against anti-union discrimination, the Committee requests the Government to take the necessary measures to ensure that the legislation explicitly establishes specific and sufficiently dissuasive sanctions against all acts of anti-union discrimination. The Committee requests the Government to report any developments in this regard.

Article 4. Promotion of collective bargaining. Relationship between collective bargaining and the law. In its previous comments, the Committee noted that, under the terms of Act No. 13467, adopted on 13 November 2017, new section 611-A of the CLT introduced the general principle that collective agreements and accords prevail over the legislation, and it is therefore possible through collective bargaining to derogate from the protective provisions of the legislation, with the sole limit of the constitutional rights referred to in section 611 B of the CLT. The Committee recalled that it considered that, while targeted legislative provisions covering specific aspects of conditions of work and providing, in a circumscribed and reasoned manner, for the possibility of their replacement by means of collective bargaining may be compatible with the Convention, a legal provision providing for a general possibility to derogate from labour legislation by means of collective bargaining would be contrary to the purpose of promoting free and voluntary collective bargaining established in Article 4 of the Convention. On this basis, the Committee requested the Government, in consultation with the representative social partners, to take the necessary measures for the revision of sections 611 A and 611 B of the CLT so as to specify more precisely the situations in which clauses derogating from the legislation may be negotiated collectively, as well as the scope of such clauses.

The Committee notes the joint observations of the ITUC, BWI, EI, IndustriALL, ITF, IUF, PSI and UNI Global Union, which denounce the harmful effects deriving from the general possibility to derogate through collective bargaining from the protective provisions of the legislation. The Committee notes that the international trade union organizations consider that the new relationship between collective bargaining and the law established by Act No. 13467: (i) radically undermines the pillars on which collective bargaining machinery is established and constitutes a frontal attack on free and voluntary collective bargaining, as guaranteed by the Convention; (ii) creates the conditions for a race to the bottom between employers for the reduction of workers’ rights; and (iii) has a dissuasive effect on the exercise of collective bargaining which is reported to have resulted in a decrease of 39 per cent in the coverage rate of collective bargaining in the country. The Committee also notes the observations of CUT, which indicates that: (i) the measures that make it possible to lower working conditions through negotiation do not promote the utilization of collective bargaining; and (ii) the reform has given rise to a significant fall in the number of collective agreements and accords concluded. The Committee also notes the observations of the NCST in this respect.

The Committee further notes the observations of the CNT and CNI, according to which sections 611-A and 611-B of the CLT: (i) offer great freedom to determine conditions of work that are favourable for all the parties through collective bargaining; (ii) are in conformity with the provisions of the Brazilian Constitution, in providing for the possibility to derogate from certain rights through a collective accord, as well as with the case law of the Supreme Federal Court, which emphasizes the need to respect agreements concluded by the social partners; and (iii) are in accordance with ILO Conventions on the subject, as indicated by the examination of the Conference Committee, which did not find any grounds for incompatibility with the Convention.

The Committee notes the information provided by the Government which, essentially, reiterates the positions expressed in previous reports. The Committee notes the Government’s indication that: (i) the 2017 legislative reform reinforces the role and value of collective bargaining by increasing its material scope, which is fully in conformity with the purposes of ILO Conventions on this subject, and particularly necessary in the context of excessively detailed labour legislation; (ii) the primacy recognized for collective agreements and accords over the law reinforces the legal security of collective bargaining, which is essential in view of the traditional interference by the Brazilian judicial authorities and responds to a historical demand by the Brazilian trade union movement; (iii) section 611-A of the CLT does not in any event require unions to conclude accords which set aside protective legal provisions, and the social partners can choose to continue to be governed by these legal provisions, when that is in the interests of the parties; (iv) the reform also ensures the protection of 30 rights set out in section 611-B of the CLT, which cannot be set aside by collective bargaining; (v) none of the 30 legal actions initiated at the national level against Act No. 13467 have been related to collective bargaining; (vi) a situation in which collective bargaining could only lead to additional benefits for workers would discourage employers from participating in such bargaining; (vii) following a reduction of 13.1 per cent in 2018, the number of collective agreements and accords began to rise over the first four months of 2019 to come close to the levels prior to the reform; and (viii) as found by a detailed study carried out by the Institute of Economic Research Foundation (FIPE), the agreements negotiated are favourable to workers and cover more areas than before, which shows that the alleged dissuasive effect of section 611-A on collective bargaining has not occurred; and (ix) the reform of the labour legislation has been welcomed by the World Bank, the Organisation of Economic Co-operation and Development, and the International Monetary Fund. Finally, the Committee notes the Government’s statements that: (i) there is no textual basis for the position of this Committee as well as the Labour Relations (Public Service) Convention, 1978 (No. 151) and the Collective Bargaining Convention, 1981 (No. 154) have the general objective of promoting more favourable conditions of work than those set out in the legislation; and (ii) the reference by the Committee to the preparatory work for the Conventions is inappropriate.

The Committee notes the various elements referred to by the Government and the national and international social partners. The Committee notes, in the first place, the Government’s indication that, contrary to the view expressed by the trade unions, the number of collective agreements and accords concluded is in the process of reaching the levels prior to the 2017 legislative reform. The Committee emphasizes the importance of continuing to have available full information on this subject, both on the number of agreements and accords concluded and their content. The Committee also notes the reiterated view by the Government and employers’ organizations that sections 611-A and 611-B of the CLT promote collective bargaining within the meaning of the Convention by ensuring greater freedom to the negotiating parties and at the same time guaranteeing that many rights cannot be set aside through collective bargaining.

The Committee recalls in this respect that, on the basis of the detailed information provided by the Government, the Committee noted in previous comments that: (i) the possibility of setting aside the protective provisions of the legislation through collective bargaining introduced by Act No. 13467 is indeed not absolute, as section 611-B of the CLT establishes a limitative list setting out 30 rights, based on the provisions of the Constitution of Brazil, which cannot be set aside through collective agreements or accords; and (ii) the possibilities for derogation from the legislation opened up by section 611-A are however very extensive insofar as, on the one hand, the section refers explicitly to 14 points covering many aspects of the employment relationship and, on the other, this list, in contrast with the list set out in section 611-B, is solely indicative (“inter alia”), with the possibility of setting aside the protective provisions of the legislation through collective bargaining thereby being established as a general principle.

The Committee recalls that it considers that, while targeted legislative provisions covering specific aspects of conditions of work and providing, in a circumscribed and reasoned manner, for the possibility of their replacement by means of collective bargaining may be compatible with the Convention, a legal provision providing for a general possibility to set aside the protective provisions from labour legislation by means of collective bargaining would be contrary to the objective of promoting free and voluntary collective bargaining, as set out in Article 4 of the Convention. While emphasizing the importance of obtaining, insofar as possible, tripartite agreement on the basic rules of collective bargaining, the Committee therefore once again requests the Government to take the necessary measures, in consultation with the representative social partners, for the revision of sections 611-A and 611-B of the CLT so as to specify more precisely the situations in which clauses derogating from the legislation may be negotiated, as well as the scope of such clauses. Moreover, noting the Government’s indications concerning the increase in the number of collective agreements and accords concluded during the first four months of 2019, the Committee requests the Government to continue providing information on developments in the number of collective agreements and accords concluded in the country, including on the agreements and accords which contain clauses derogating from the legislation, specifying their nature and scope.

Relationship between collective bargaining and individual contracts of employment. In its previous comments, the Committee requested the Government to take the necessary measures to ensure the conformity with the Convention of section 444 of the CLT, under the terms of which workers who have a higher education diploma and receive a wage that is at least two times higher than the ceiling for benefits under the general social security scheme may derogate from the provisions of the applicable collective agreements in their individual contracts of employment.

The Committee notes the Government’s indication in this regard that Article 4 of the Convention does not refer to individual contracts of employment and that it reiterates that section 444 of the CLT concerns a very small group of workers, generally higher managerial personnel, representing only around 0.25 per cent of the population. The Committee also notes the position of the employers’ organizations, the CNI and CNT, which consider that the provisions of section 444 extend the possibilities for negotiation available to the workers concerned. The Committee finally notes the position expressed by the national and international trade union organizations, which call for the repeal of the provision.

The Committee recalls once again that the obligation to promote collective bargaining set out in Article 4 of the Convention requires that the individual negotiation of the terms of the contract of employment cannot derogate from the rights and guarantees provided in the applicable collective agreements, on the understanding that contracts of employment can always set out more favourable terms and conditions of work and employment. The Committee also reiterates that this principle is explicitly set out in Paragraph 3 of the Collective Agreements Recommendation, 1951 (No. 91). While emphasizing once again that collective bargaining machinery can take into account the specific needs and interests of different categories of workers who may, if they so wish, be represented by their own organizations, the Committee recalls that the present Convention is fully applicable to the workers covered by section 444 of the CLT insofar as, under the terms of Articles 5 and 6, only the armed forces and the police (Article 5) and public servants engaged in the administration of the State (Article 6) may be excluded from the scope of application of the Convention. The Committee therefore reiterates that the Convention does not allow for an exclusion from its scope of application on the basis of the level of remuneration of the workers. The Committee therefore once again requests the Government, after consultation with the representative social partners concerned, to take the necessary measures to ensure the conformity of section 444 of the CLT with the Convention. The Committee requests the Government to provide information on any progress achieved in this respect.

Scope of application of the Convention. Autonomous and self employed workers. In its previous comments, based on the allegations made by the trade unions that the extension of the definition of self-employed workers as a result of new section 442-B of the CLT would have the effect of excluding a significant category of workers from the rights set out in the Convention, the Committee invited the Government to hold consultations with all the parties concerned with a view to ensuring that all autonomous and self-employed workers are authorized to participate in free and voluntary collective bargaining, and to identify the appropriate adaptations to be introduced into collective bargaining procedures to facilitate their application to these categories of workers.

The Committee recalls that, irrespective of the definition of autonomous and self-employed workers stemming from section 442-B of the CLT, all workers, including autonomous and self-employed workers are covered by the provisions of the Convention. In this respect, the Committee welcomes the Government’s indications that, under the terms of section 511 of the CLT, which recognizes the right to organize of autonomous workers, these workers are also covered by the right to engage in collective bargaining. The Committee further notes in this regard the similar position expressed by the CNT and CNI. At the same time, the Committee notes the call made by the ITUC and seven international trade union federations for all measures to be taken to ensure the effective access of autonomous and self-employed workers to free and voluntary collective bargaining. The Committee invites the Government to provide examples of collective agreements or accords negotiated by organizations representing autonomous or self-employed workers or, at the least, of which the scope of application covers these categories of workers.

Relationship between the various levels of collective bargaining. The Committee previously noted that, under the terms of section 620 of the CLT, as amended by Act No. 13467, the conditions established in collective labour accords (which are concluded at the level of one or more enterprises) always prevail over those contained in collective labour agreements (which are concluded at a broader level, such as a sector of activity or an occupation). In this regard, the Committee requested the Government to indicate the manner in which respect for the commitments made by the social partners in the framework of agreements concluded at the level of the sector of activity or occupation is guaranteed and to provide information on the impact of section 620 of the CLT on recourse to the negotiation of collective agreements and collective accords, and on the overall coverage rate of collective bargaining in the country.

The Committee notes that the Government confines itself to indicating in this regard that the objective of section 620 of the CLT is to allow the conclusion of accords that are closer to the everyday reality of workers and the enterprise. The Committee also notes that the CNI and CNT consider that the primacy accorded in all cases to collective accords over collective agreements, of which the scope of application is broader, is fully in accordance with the provisions of the Convention, insofar as the latter does not establish any order of preference or hierarchy between the various bargaining levels.

The Committee recalls once again that, in accordance with Article 4 of the Convention, collective bargaining must be promoted at all levels and that, in conformity with the general principle set out in Paragraph 3(1) of Recommendation No. 91, collective agreements should bind the signatories thereto and those on whose behalf the agreement is concluded. Noting the absence of replies by the Government in this regard, the Committee once again requests the Government to: (i) indicate the manner in which respect for the commitments made by the social partners in the framework of agreements concluded at the level of the sector of activity or occupation is guaranteed; and (ii) provide information on the impact of section 620 of the CLT on recourse to the negotiation of collective agreements and collective accords, and on the overall coverage rate of collective bargaining in the country.

Article 4. Promotion of free and voluntary collective bargaining. Subjection of collective agreements to financial and economic policy. The Committee recalls that for many years it has been emphasizing the need to repeal section 623 of the CLT, under the terms of which the provisions of an agreement or accord that are in conflict with the standards governing the Government’s economic and financial policy or the wage policy that is in force shall be declared null and void. In this regard, emphasizing that Article 4 of the Convention requires the promotion of free and voluntary collective bargaining, the Committee recalled that: (i) the public authorities may establish machinery for discussion and the exchange of views to encourage the parties to collective bargaining to take voluntarily into account considerations relating to the Government’s economic and social policy and the protection of the public interest; and (ii) restrictions on collective bargaining in relation to economic matters should only be possible in exceptional circumstances, that is in the case of serious and insurmountable difficulties in preserving jobs and the continuity of enterprises and institutions. In view of the absence of a response from the Government on this matter, and noting that the 2017 reform of the labour legislation has not removed this section, the Committee once again requests the Government to take the necessary measures to amend the legislation as indicated above and to provide information in its next report on any measures adopted in this regard.

The Committee is raising other matters in a request addressed directly to the Government.