Observation (CEACR) - adoptée 2022, publiée 111ème session CIT (2023)

Convention (n° 29) sur le travail forcé, 1930 - Brésil (Ratification: 1957)

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Observation

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The Committee notes the observations of the International Trade Union Confederation (ITUC), the Single Confederation of Workers (CUT) and the National Association of Labour Court Judges (ANAMATRA), received on 1 September, 2 September and 6 December 2021, respectively. It also notes the Government’s response to the observations of the CUT.

Articles 1(1), 2(1) and 25 of the Convention. ”Slave labour”. (a) Legal framework. (i) Section 149 of the Criminal Code criminalizing “reducing a person to a condition akin to slavery”. The Committee previously referred to the debates concerning the issue of the criminalization of “reducing a person to a condition akin to slavery” as envisaged in section 149 of the Criminal Code and the legislative proposals to amend the section. The Committee notes the Government’s reference in its report to the adoption of Decree No. 1293 of 2017 which sets out a specific definition of the elements that constitute the crime of reducing a person to a condition akin to slavery within the meaning of section 149 of the Labour Code, namely forced labour, a harassing working day, degrading working conditions, the restriction of the freedom of movement of the worker by reason of having contracted a debt, and/or retention at the workplace. In this regard, the Government emphasizes that it emerges from these definitions and the case law that “the work of a person reduced to a condition akin to slavery within the meaning of section 149 of the Criminal Code (hereinafter “slave labour”) is not limited to the use of physical violence (when used to restrict individual freedom), but may also be characterized by various other forms, where there is abuse of human dignity.

The Committee notes that in their observations both the CUT and the ANAMATRA express concern at the fact that the legal specification of the notion of reducing a person to a condition akin to slavery continues to be controversial at the political level and in certain jurisdictions. The ANAMATRA expresses concern at several draft legislative texts submitted with a view to the amendment of section 149 of the Criminal Code and at the restrictive interpretation of this section by certain first instance courts, and in particular of the concept of degrading working conditions, despite the fact that higher courts have already given a precise and objective interpretation of the concept in consolidated case law.

The Committee requests the Government to continue taking the necessary measures to ensure that the discussions relating to the scope of application of section 149 of the Criminal Code do not constitute in practice an obstacle to the action taken by the competent authorities for the identification and protection of the victims of any situation involving forced labour and to punish the perpetrators of this crime in an appropriate and swift manner.

(ii) Article 243 of the Constitution.The Committee recalls that, following the Constitutional amendment adopted in 2014, article 243 of the Constitution allows the expropriation of rural or urban property in which the use of slave labour has been identified and the consignment of this property to agrarian reform and social housing programme. The Committee notes the absence of information on the application of this article in practice. It observes in this regard that, although the Ministry of Labour and the Higher Labour Court consider that this article may be directly applied, the Attorney-General of the Union is of the view that article 243 of the Constitution is of “limited efficacy” and that its application depends on the adoption of legislation to give effect to it (case No. 000450-57.2017.5.23.0041, labour tribunal of Colider (TRT, 23rd Region) and case No. TST-RR-450-57.2017.5.23.0041). The Committee reiterates that the possibility of the expropriation of the property of persons found guilty of having imposed “slave labour” is an important tool in combating this phenomenon as it contributes to undermining the economic interests of those who exploit slave labour and to combating the sense of impunity. The Committee requests the Government to provide information on the measures adopted to ensure that effect is given in practice to this provision of the Constitution. It requests the Government to provide information on any decisions concerning expropriation that have been handed down and the measures adopted to ensure their execution. In particular, the Committee requests the Government to indicate whether the funds resulting from expropriated property directly benefit workers who have been victims of forced labour, thereby preventing the risk of them becoming victims once again.

(iii) Register of employers. With reference to the questions arising concerning the publication of the list of legal or physical persons or entities found to be responsible for using slave labour (known as the “dirty list”), the Committee observes that, following appeals to find it unconstitutional, the Supreme Federal Tribunal confirmed, on 14 September 2020, the constitutionality of the establishment, publication and updating of the list. The Government reiterates in this regard that persons and entities are included in the list only upon finalization of the administrative procedure relating to the violation reported, and that during this procedure employers benefit from constitutional procedural guarantees, such as the right to defence and respect for the principle of an adversarial procedure. Inclusion in the list is for a period of two years. The Committee notes, from the information available on the website of the Ministry of Labour and Social Welfare that, following its suspension in 2015 and 2016, the Ministry is continuing to update and publish the list every six months. The list published in October 2022 added 95 employers (66 persons and 29 legal persons or entities), bringing the total number of persons and entities on the list to 179.

The Committee emphasizes once again that this list is an information tool both for society as a whole and for enterprises, which are therefore in a better position to control and monitor their supply chains. The Committee notes in this regard the Government’s reference to the National Pact Institute for the Eradication of Slave Labour (InPacto), of which the member enterprises are committed to determining the commercial restrictions that are to be established with legal entities on the list. The Committee therefore firmly encourages the Government to continue taking all the necessary measures to ensure that the list of physical and legal persons and entities recognized as being responsible for the use of labour in conditions akin to slavery is published regularly.

(b) Systematic and coordinated action. Recalling that, because of its complexity, action to combat forced labour requires coordinated and concerted action by the public authorities and the involvement of civil society as a whole, the Committee previously requested the Government to provide information on the coordination activities of the National Commission for the Eradication of Slave Labour (CONATRAE) and on the implementation of the action envisaged in the second National Plan for the Eradication of Slave Labour (Plan II). The Government indicates that, despite the measures adopted since 1995, slave labour still persists in Brazil, and for this reason action to combat slave labour has been adopted at the level of a State policy. The Government reiterates that it is essential not only to raise the awareness of the Government authorities, but also the whole of the population of this issue. The Committee notes that CONATRAE, which has the mandate to support the implementation of Plan II and to propose measures for this purpose, approved the final evaluation report of the implementation of the Plan (a report drawn up with the assistance of the Office). According to the evaluation, nearly 70 per cent of the objectives set out in Plan II were achieved or partially achieved. In this context, CONATRAE has published a series of recommendations on the six pillars included in Plan II (including enforcement, prevention and the reintegration of victims). The Committee also takes due note of the creation of the SmartLab platform, through a joint initiative by the Ministry of Labour and the Office. This platform offers an observatory for the eradication of slave labour and trafficking in persons, which brings together all the information contained in the databases of the various authorities with competence for combating slave labour with a view to facilitating the effective management of public policies and programmes in this field.

The Committee requests the Government to continue taking the necessary measures to achieve all the objectives of the National Plan for the Eradication of Slave Labour (Plan II) and for the implementation of the recommendations made in this respect by CONATRAE and to provide information on this subject, with an indication of the results achieved and the difficulties encountered. It also requests the Government to indicate the action taken by CONATRAE to ensure systematic, coherent and coordinated action to combat slave labour throughout the territory.

(c) Action by the labour inspection services and labour courts. The Committee previously requested the Government to strengthen the capacities of the labour inspection services and the labour courts. It emphasized on the key role played by the Special Mobile Inspection Group (GEFM) in the identification of cases of slave labour and by the labour investigation authorities which, through their action, have succeeded in imposing substantial fines for violations of labour legislation and compensation for the moral damage suffered by workers and the collective moral prejudice suffered by society. The Committee notes the Government’s indication that, since the beginning of its operations in May 1995, the GEFM has released over 59,000 workers from situations of slave labour and that over 126 million reais have been received by workers for the wages and compensation due. It adds that the experience acquired by the GEFM and its operating methods have been presented in the context of the training provided to the Regional Labour and Employment Superintendences (SRTEs), which are now developing their own programmes to combat slavery-like labour. There are now more operations of the SRTEs than of the GEFM, which acts in a subsidiary capacity in cases where operations are urgent, complex or dangerous (54 and 46 per cent respectively in 2020). The Government adds that, following the adoption of Decree No. 1.293/2017, the labour inspection services adopted Directive No. 139 in 2018 reaffirming that inspections for the eradication of slave labour are coordinated by the Labour Inspection Secretariat (SIT) and establishing a non-exhaustive and non-exclusive list of indicators to be verified in the cases of suspected slave labour. The Government indicates that 272 operations were carried out in 2019, resulting in the release of 1,054 workers, of whom 655 were in the agricultural sector. In 2020, despite the social distancing measures related to the COVID-19 pandemic, operations continued with 276 being undertaken, resulting in the release of 936 workers. According to the assessment report of 2020 on the work of the labour inspection services in Brazil for the eradication of labour akin to slavery, 78 per cent of the workers released were in the rural sector (particularly in coffee cultivation and the production of vegetable carbon) and there was an increase in the urban sector.

The Committee notes the reference by the ITUC to the dismantling of mechanisms established in the past to combat slave labour. It refers in particular to the drastic reduction in the annual budget allocated by the federal government to action to combat slave labour; the lack of resources of labour prosecutors, who are not able to carry out investigations in the cases referred to them; and the shortage of federal labour inspectors. According to the ITUC, only 20 per cent of reported cases are investigated and the existence of slave labour is only proved in 45 per cent of those cases. ANAMATRA comes to the same conclusion and emphasizes that budget cuts have been stepped up since 2019 and that in 2021 the budget announced for inspections and action to combat slave labour was the lowest for the past seven years, with a cut of 47.3 per cent.

The Committee recalls that, as a result of their inter-institutional composition (labour inspectors and representatives of the labour prosecution services, the federal police and the federal prosecution services), the GEFM and now the SRTEs are a vital link in action to combat slave labour, not only through the release of workers from situations of forced labour, but also through the gathering of evidence which can be used to initiate civil and criminal prosecutions against the perpetrators of these practices. While noting certain of the measures adopted, the Committee urges the Government to intensify its efforts to take the necessary measures to provide the labour inspection services, and particularly the GEFM, with sufficient human and financial resources to be able to carry out their mission throughout the territory, and to reinforce the means of action of the labour investigation and prosecution authorities. The Committee requests the Government to provide information on the measures adopted in this respect and specify the number of operations undertaken, the number of workers released, the sectors concerned, the fines imposed and the compensation granted.

(d) Imposition of criminal penalties. The Committee previously noted the absence of specific information on the rulings handed down by the federal judiciary under section 149 of the Criminal Code. The Committee notes the Government’s indication in its report that 951 judicial proceedings were initiated between 2001 and 2020 under section 149 of the Criminal Code. It also provides information relating to seven judicial decisions in which persons were convicted (one in 2010, one in 2017, three in 2019 and two in 2020). The Committee notes the indication by the CUT in its observations that, although many judicial proceedings are opened under section 149 of the Criminal Code, there are few convictions. The Committee also observes that, in its 2021 report on the situation of human rights in Brazil, the Inter-American Commission on Human Rights (IACHR) notes with concern that, even though the large number of workers liberated since 1995 and the sums paid to them point to fairly positive outcomes, related criminal convictions are still rare and there have been relatively few convictions for “exploiting labour under conditions akin to slavery”. The Committee recalls in this regard that, in accordance with Article 25 of the Convention, really adequate penalties shall be strictly enforced on persons for the exaction of forced labour. The Committee therefore requests the Government to provide specific information on the number of cases related to section 149 of the Criminal Code that are currently before the federal prosecution services, the number of judicial proceedings initiated, the number of convictions and the nature of the penalties imposed. The Committee also requests the Government to indicate the measures taken to reinforce coordination and collaboration between the labour inspection, the police, the labour prosecution services and the federal prosecution services for the gathering of evidence with a view to initiating judicial proceedings and prosecuting those suspected of the exaction of forced labour and, if they are found guilty, imposing criminal penalties on them that are commensurate with the crime committed.

(e) Protection and rehabilitation of victims. The Committee notes that the Government is continuing to provide emergency and medium-term assistance to victims of forced labour with a view to facilitating their reintegration (particularly through the provision of unemployment benefit corresponding to three minimum wages). The Committee requests the Government to continue taking measures to protect and assist victims of forced labour and facilitate their social rehabilitation and to provide detailed information on the specific measures adopted in this respect. The Committee also requests the Government to provide information on the action taken to raise the awareness of workers of the risks that arise in the regions most affected by forced labour.

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