Informe provisional - Informe núm. 98, 1967

1. 121. This case has already been the subject of six interim reports by the Committee contained in paragraphs 133 to 152 of its 81st Report, 271 to 277 of its 83rd Report, 474 to 491 of its 85th Report, 209 to 233 of its 87th Report, 215 to 219 of its 90th Report and 177 to 201 of its 93rd Report.
2. 122. Following its last examination of this case, the Committee put forward its final conclusions regarding most of the elements in the case. Only one allegation remained in suspense, and the Governing Body, on the Committee's recommendation, requested the Government to be so kind as to keep it informed of the situation of the trade union leaders who had not been freed who were mentioned by name by the World Federation of Trade Unions in its communication of 7 December 1964 and regarding whom the Governing Body noted that the Government had already supplied certain information in its communications of 22 June 1965 and 24 May 1966.
3. 123. As approved by the Governing Body at its 167th Session (November 1966), the Committee's conclusions were brought to the notice of the Government by a letter dated 22 November 1966, in particular the request for additional information mentioned in the previous paragraph.
4. 124. Since then, in a communication dated 29 November 1966, received on 21 December 1966, the World Federation of Trade Unions made a series of new allegations of which some revert to aspects of the case already dealt with by the Committee whereas others represent new factors. The text of these allegations has been transmitted to the Government for its observations in a letter dated 29 December 1966.
5. 125. In its last communication the W.F.T.U first of all recalls that, in April and December 1964, it submitted complaints protesting against the measures taken by the Brazilian Government after the " military coup d'état " of April 1964, quoting allegations regarding imprisonment without judicial warrant of trade union leaders and militants, torture inflicted on victims of repression, the sacking of trade union premises and, in general, the basing of relations between the Government and the workers on terror.
6. 126. The W.F.T.U goes on to affirm that the two years which followed the change of régime merely confirmed the obvious intention of the authorities to do away with even the appearance of trade union freedoms and democratic rights. The complainant contends that the Universal Declaration of Human Rights, the Brazilian Constitution of 1946 and the ordinary laws have become a dead letter.
7. 127. The complainant then makes a series of specific allegations which will be examined separately in the paragraphs which follow.

A. A. The complainants' allegations

• Allegations relating to the Arrest and Sentencing of Trade Union Militants, Trade Union Leaders and Workers
  128. 128 As soon as the change of régime had taken place, states the W.F.T.U, military authorities were set up as authorities of inquiry in criminal matters in order to ensure the carrying out of the measures decided on by the Government for the suppression of freedom. Administrative authorities (whose members are appointed by the military junta) have replaced the judicial investigating authorities. All the cases brought by the Brazilian authorities have been on the basis of the instruction of those authorities, whose methods have been denounced by the Brazilian press. The accused, including many trade union leaders and militants accused of subverting the established order, have appeared before military courts. The W.F.T.U mentions by name 19 persons-of whom several had already been mentioned at earlier stages in the case-indicates their trade union status, and specifies the penalties incurred by them.
  129. 129 The complainant alleges that one year after the change of régime more than 3,000 persons, including many trade unionists, were being held in preventive detention until the " investigating " authorities had finished " faking " evidence intended to ensure that they would be sentenced.
  130. 130 In those circumstances, states the W.F.T.U, there was an upsurge of protest throughout the country aimed at the revocation of the Constitutional Act of 9 April 1964. Confronted with this spontaneous indignation of the public, continues the complainant, the Government on 27 October 1965 promulgated a second Constitutional Act.
  131. 131 That promulgation did not, however, give rise to a liberalisation of the régime. On the contrary, according to the complainants, it marked a further step in the institutionalisation of the dictatorship and was the starting point for more severe repressive measures. New trials were conducted by the military courts in disregard of the guarantees for the regular processes of law, the first and principal victims of these trials being the workers and their leaders.
  132. 132 The complainants allege that in the IVth Military District the miners of Morro Velho, accused on the one hand of attempts to overthrow Constitutional order, and on the other of having taken part in a strike to support economic claims before the coup d'état of April 1964, were to be brought before the military courts. The complainants list by name 147 persons. The W.F.T.U also alleges that at the national engine factory 35 workers, whose names it lists, have been in preventive detention for more than two years while waiting to appear before the military court of the district accused, according to the charge, of having " engaged in strike activities in the factory ". Finally, the complainants allege that 31 workers (several of whose names are given) of the Ishikawagi Company are going to be brought to court for having taken part in a strike before the events of April 1964.
  133. 133 In the view of the complainants the above-mentioned facts show that it is not a matter of isolated cases of violation of democratic and trade union rights, but of a systematic policy on the part of the Government aimed at deliberately crushing all trade union and democratic activity.
• Allegations regarding Repressive Measures Directed against the Trade Unions
  134. 134 The measures taken against the trade union militants and leaders which have been described above, state the complainants, only represent the first phase of the removal of the freely elected trade union leaders and their replacement by " controllers " appointed by the authorities.
  135. 135 Immediately after the month of April 1964, state the complainants, four Confederations, 43 federations and 400 trade unions, representing more than 70 per cent of the organised workers of Brazil, were placed under the control of the military authorities. The assertion of the Government that a return to a normal situation is being effected at considerable speed is, in the view of the complainants, entirely without foundation.
  136. 136 The complainants point out that under a Ministerial Instruction-No. 40 of 21 January 1965-persons may not be elected as trade union officers if they are found to have been guilty of misconduct, in particular persons whose political rights have been suspended. As a spokesman of the Military Government is said to have explained, the Government wished in that way to prevent the trade unions from being dominated by subversive elements, and with that object in view the Ministry of Labour prevented certain elected leaders from taking up their duties.
  137. 137 According to the W.F.T.U, the fact that there are ideological requirements of that kind in trade union elections shows the nature of the Brazilian Government's concept of relations between the authorities and the trade unions; the latter, in the view of the complainants, are nothing but "receiving points" for government instructions and are consequently under strict state control.
  138. 138 The complainants state that Ministerial Instruction No. 40 gave rise to a powerful movement of protest on the part of the workers, and was replaced by Instruction No. 176 of 1966. This however-they assert-did not represent a step forward; it provides that the Ministry of Labour shall indicate five days before an election the names of those who can be elected. Thus, declare the complainants, it is the Government which decides who can be the candidates for trade unions elections, persons not having the confidence of the Government being refused permission to stand.
  139. 139 Therefore, contrary to what the Government asserts, state the complainants, government intervention in the life of the trade unions has not ended. In this connection they quote the example of the Bank Employees' Trade Union of the State of Guanabara, which is said to have been under government control since April 1964 and to have been forbidden by the Government to hold elections.
  140. 140 The complainants also allege that on 22 June 1966 a decree of six months' suspension was issued in respect of the Brazilian Dockworkers' Union; that administrative measure is said to constitute a first step towards the dissolution of the organisation, which is accused of engaging in activities prejudicial to national security and public order.
  141. 141 According to the complainants, intervention by the authorities in trade union activities now represents the normal relationship between the State and the trade unions. Thus, they point out, Legislative Decree No. 3 stipulates that government intervention in trade union affairs is justified in cases of " factors affecting national security ", which factors, according to the complainants, include strikes and the election of a candidate regarded as unreliable by the Government.
  142. 142 Even when a trade union has ceased to be under the effective direction of a " controller "-state the complainants-that does not mean that the trade union is able to function freely. Meetings and assemblies of the trade unions are, in fact, frequently attended by members of the political police. Thus, according to the W.F.T.U, on 28 April 1966 police broke into the premises of the Metal Workers' Trade Union of Guanabara " to see who was taking part in the meeting ".
  143. 143 According to the complainants, certain military controllers responsible for directing the trade unions had taken advantage of their position and of the confidence placed in them by the authorities to dispose of the property of the trade unions. As an example, the complainants allege that Mr. Severino Guerra, an officer of the military police, misappropriated more than 7 million cruzeiros (some 3,500 dollars) of the funds of the Commercial Employees' Union of Niteroi. The complaint lodged by the general meeting of the union met with no response on the part of the authorities.
• Allegations concerning Measures against the Right to Strike
  144. 144 Under section 5 of Law No. 4330 of 1 June 1964, the complainants point out, the exercise of the right to strike has to be based on a decision adopted by secret ballot by a majority vote of the general meeting of the trade union organisation representing the occupational category concerned, two-thirds of the members of the organisation being present (in the case of a first convocation of the meeting) or one-third of the members (where the general meeting is convoked for the second time). In the complainants' view, to require such quorums gives rise to enormous practical difficulties for the trade unions which, in the case of large trade unions, become insuperable, if only because it is impossible to find sufficiently large premises. Many difficulties also arise when it is a matter of providing transport for workers from their place of work to that of the meeting. The complainants consider that these legislative provisions are intended to limit the right to strike and do in fact have that effect.
  145. 145 When general meetings are held with a view to a possible strike, representatives of the Ministry of Labour and Social Welfare are present and are empowered to intervene in the discussions (section 8). In the view of the complainants, this direct intervention of the authorities in the general meetings held to decide whether or not to strike constitutes an intolerable limitation of the workers' right to decide freely what action they will take.
  146. 146 Under section 10, continue the complainants, once the employees' claims or grievances are approved and the strike has been authorised, the managing committee of the trade union organisation concerned has to serve written notice on the employer to the effect that, after a period of five days for the purpose of finding a solution acceptable by the employees, the trade union will, if no such solution is forthcoming, declare a peaceful and temporary suspension of work as from the date and time indicated, subject to a further period of notice of at least five days in the case of accessory activities and of at least ten days in the case of essential activities. In the complainants' view, these requirements regarding notice are intended to weaken the workers' position with regard to the employers and to enable the Government to apply pressure on the trade unions and organise suppression of the strike movement.
  147. 147 Sections 12 and 13, the complainants state, give such a huge list of essential activities that it covers nearly all industrial activity. Limitation of the right to strike is to be found, on the one hand, in the prohibition forbidding certain categories of workers to have recourse to a strike, and on the other hand in the fact that the Government has arbitrary powers to decide whether a strike is legal or illegal.
  148. 148 Under section 15 the employer can require that the strikers shall see to the maintenance of machinery and anything in the undertakings which requires constant attendance, so as to ensure that work can be immediately resumed when the strike comes to an end. In the view of the complainants this clause renders null and void the distinction which the law was intended to make between essential and secondary activities. It makes it possible to regard all activities as essential and to oblige the strikers to work.
  149. 149 The complainants allege that section 17 of the law, under which the authorities are to guarantee free access to the workplace to persons who wish to continue their work, would serve as a pretext for the police to compel the strikers, sometimes by violent methods, to resume work.
  150. 150 In the complainants' view, according to the provisions mentioned in the preceding paragraphs, Law No. 4330 of 1 June 1964 is an anti-strike law contrary to section 158 of the Brazilian Constitution.
  151. 151 The complainants add that even when the trade unions have conformed with all the requirements of the law, their right to strike is still not thereby guaranteed, and they quote the example of 275 workers of an undertaking coming under the National Highways Department who, they state, were dismissed as the result of a strike although that strike had been recognised as legal.
• Allegations relating to Infringements of the Right to Negotiate
  152. 152 According to the complainants, from April 1964 onwards a large number of legislative enactments and measures aimed at restricting the right of collective bargaining were adopted. The W.F.T.U quotes, in the first place, Decree No. 54018 of 14 July 1964 re organising the National Council on Wage Policy. The complainants state that under this decree persons employed in semi-public companies, autonomous services of the Federal Union and private undertakings receiving federal subsidies are deprived of the right to negotiate for wage increases, the establishment of wage scales for those categories of persons being the responsibility of the National Council on Wage Policy, on which the workers are not represented (sections 1 to 4). At any rate, no agreement relating to the wages of the workers concerned can be concluded without the previous agreement of the Council. In the complainants' view, that represents a means of putting pressure on employers to discourage them from making agreements with their employees.
  153. 153 Section 6, the complainants continue, stipulates that no readjustments are to be made in wages controlled by the federal Government until one year has elapsed as from the date of the last revision. When one considers, state the complainants, that the cost of living increased by 223.9 per cent between April 1964 and April 1966, one gets some idea of the way in which labour has been devalued in Brazil where wages are below a decent minimum level.
  154. 154 The complainants affirm that, inasmuch as it obliges labour courts to take into account the Government's wages policy criteria in the collective disputes heard by them, section 8 deprives those courts of the right to analyse the true circumstances underlying each dispute and to grant a fair wages adjustment, since the ceiling of any readjustment is also fixed by the Executive.
  155. 155 The complainants state that Decree No. 54018 was only intended to apply to certain categories of workers. They affirm, however, that instructions from the Government were sent to employers inviting them to take into account the provisions and criteria of the decree for readjusting the wages of their employees. Threats of fiscal penalties are said to have been made by the authorities in respect of employers who intended to negotiate freely with the employees.
  156. 156 Not content with the restrictions already applied to the free negotiation of wage terms, the Government-according to the complainants-on 13 July 1965 promulgated a law (No. 4725) which gives general application to the procedures for fixing wages laid down in Decree No. 54018 for certain categories of workers only. That law provides, inter alia, that no wage increase may exceed half the increase in the cost of living.
  157. 157 Decree No. 15 of 29 July 1966, state the complainants, lays down strict rules in relation to wage increases which employers and workers have to obey. Section 2 provides that the National Council on Wage Policy shall not authorise any wage increase going beyond the strict application of the criteria fixed by the law, which, in the complainants' view, is tantamount to doing away with the right of collective bargaining completely.
  158. 158 Under section 5, the complainants continue, undertakings which declare that they cannot pay a wage increase for financial or economic reasons are authorised not to respect the obligations incumbent on them as a result of collective agreements or arbitration awards. Section 7 prohibits any adjustment which disregards the rules and criteria prescribed by the decree, that is to say the index determined unilaterally by the Government.
  159. 159 Instead of mere threats, as previously (see paragraph 155 above), section 10 of Decree No. 15 provides expressly, according to the W.F.T.U, for tax penalties for employers who do not observe the requirements of the decree, in other words the percentages fixed by the Government.
• Allegations concerning the Infringement of the Rights of Young Workers
  160. 160 The complainants put forward a certain number of allegations concerning the living and working conditions of children and young workers. As this aspect of the matter is not connected with the exercise of trade union rights, the Committee considers that it does not come within its terms of reference.
• Allegations concerning Measures of Discrimination against Dockworkers and Railwaymen
  161. 161 The repressive and anti-trade union measures of all sorts adopted in respect of the workers have-state the complainants-affected all vocational groups without exception. Some of those groups, however, have, they state, been particularly affected as a result of the especially intense trade union activities in which they engaged before the events of April 1964. That is said to have been particularly the case as regards activities in the docks and on the railways.
  162. 162 The complainants allege that the Government, by its decree of April 1965, cancelled the agreements establishing conditions of work for workers in the port of Santos, in particular abolishing benefits connected with supplementary pensions, the family wage of 6,000 cruzeiros, extra pay after five years' service, the six-hour day and other advantages. Law No. 4860 of 1965 abolished other benefits which had been enjoyed by the dockers since 1934. The provisions of that law are stated to have resulted in a reduction of 50 per cent in the wages of the workers, the extension of the working day from six to 12 hours, a reduction in the rates applicable to night work, a reduction of 30 per cent in the rates applicable to unhealthy work, the total abolition of job security, the abolition of seniority increments, of double-time rate for work on Sundays and public holidays, and allowances in case of death. A decree of 26 January 1966 is also stated to have done away with the right to strike, to have authorised dismissal without compensation in the case of strikes and to have provided for dismissal at the request of the authorities for reasons of national security.
  163. 163 The complainants allege that the railway workers were also subjected to measures of the same kind. All the collective agreements relating to them are stated to have been cancelled. This category of workers is said to have ceased to enjoy the same terms of pay as other public servants, seniority increments of 20 to 25 per cent are said to have been abolished, as are the 30 days' paid leave and compensation for work done away from the normal place of duty and for dangerous work. Law No. 4863 of 1965 is said to have provided for an increase of 35 per cent in the wages of railwaymen; but in spite of that law, and on the instructions of the authorities, the management of the state railways is said to have decided to grant the increase only to those workers who agreed to increase their daily working hours from six to eight, the others receiving an increase of only 9.7 per cent.
• Allegations concerning the " Training " of Trade Union Leaders
  164. 164 The complainants allege that the Government has plans for the "training" of trade union leaders. As an example they mention that in the State of Piaui an agreement between the National Institute for Agricultural Development and the military police of the State provides for the holding of several courses of trade union training in the barracks at Teresina, the capital of the State. These courses are to be directed by " specialists " on trade union matters belonging to the military police. The complainants hold it to be obvious that such courses are aimed solely at strengthening the grip of the Government and the army on the workers' organisations by depriving them of any independence.
  165. 165 In conclusion the W.F.T.U affirms that the facts it has related and which are summarised above do not cover all aspects of the very serious situation facing trade union organisations in Brazil. They consider, however, that they will at least have shown that violations of trade union rights and democratic freedoms perpetrated by the Brazilian authorities reveal on the part of the latter a determination to wipe out any independent trade union movement and to trample underfoot the elementary principles of law and to condemn the workers to penury and hunger.
  166. 166 The complainants therefore request the I.L.O urgently to make the necessary approaches to the Brazilian Government with a view to the re-establishment of trade union and democratic freedoms and, more specifically, with a view to freeing the trade union militants and leaders who have been sentenced " by courts with no competence " for their trade union activities, the abolition of " investigations " by the military police with a view to criminal proceedings, the re-establishment of guarantees of normal judicial procedure and the trial of trade union militants and leaders by courts other than the military tribunals, the return to independence of the trade unions, the cessation of control over the trade unions and of their suspension or dissolution by the authorities, the holding of free trade union elections free from all government control and for which any person can stand without discrimination based on political opinions or religious convictions, the annulment of the suspension of the Brazilian Dockworkers' Union and the abandonment of measures to dissolve it, the ending of police intervention in trade union affairs, and the ending of the workers' training courses held in the barracks of Teresina.
  167. 167 The complainants further request the I.L.O to approach the Brazilian Government so as to ensure that national legislation respects the internationally recognised principles relating to trade union freedom, takes into account the Universal Declaration of Human Rights, does not violate the International Labour Conventions ratified by Brazil, ensures the independence of the Judiciary from the Executive, gives renewed effect to workers' rights, in particular the right to organise freely, the right to strike, the right of collective bargaining, the right to an eight-hour day and the right to equal pay for equal work.
• Observations of the Government
  168. 168 In its communication to the Director-General dated 9 February 1967 the Brazilian Government states that it regards the new complaint submitted by the World Federation of Trade Unions as completely groundless. It adds that it considers the wording of the complaint to be insulting to the Government and expresses the view that the complaint is mainly designed to " create ill-will against Brazil among the members of the Governing Body and the trade union organisations represented in the I.L.O."
  169. 169 The Government further recalls that it has always kept the I.L.O informed of developments in the trials of the main trade union leaders " whose cases are still being dealt with by the Committee on Freedom of Association " by supplying detailed information, including copies of the judgments. " The persons referred to in the charges now made by the World Federation of Trade Unions ", states the Government, " once more include these leaders, but the facts quoted are out of date since by decision of the Higher Military Court the previous sentences have been substantially reduced."
  170. 170 In conclusion the Government states that it categorically rejects the allegations of the complaining organisation.

B. B. The Committee's conclusions

• Conclusions of the Committee
  171. 171 The Committee notes, as does the Government, that some of the points made by the W.F.T.U in its letter dated 29 November 1966 have already been made at earlier stages in the examination of this case and, in particular, that the cases of certain of the individuals mentioned by the complainant have already been studied by the Committee. Where the latter has already come to a final conclusion in this respect it does not intend to reopen the case.
  172. 172 The Committee notes, however, that in its communication the W.F.T.U makes a number of new allegations and puts forward new evidence in connection with questions that had been raised earlier. In its reply the Government does not make the observations on the subject requested by the Director-General in his letter of 29 December 1966. Finally, the Committee also notes that the Government's reply does not contain the additional information referred to in paragraphs 122 and 123 above.
  173. 173 Accordingly, in view of the fact that this latter information, together with the Government's observations on the detailed and often serious allegations put forward in the last communication received from the W.F.T.U, are indispensable to the Committee if it is to submit its conclusions on this case to the Governing Body in full knowledge of all the facts, the Committee, while acknowledging that the tone sometimes used by the complainant may have caused offence to the Government, feels bound to request the latter to be good enough to supply the information specified below.
  174. 174 As regards the request for additional information mentioned in paragraphs 122 and 123 above and referred to in paragraph 172, it will be recalled that in a communication dated 7 December 1964 (forwarded to the Government by a letter dated 15 December 1964) the W.F.T.U listed the names of 47 trade union leaders whom it alleged had been arrested. In the first observations it made on the subject, the Government stated that 11 of the individuals in question had been set free without any charge being made against them, 15 were being investigated but remained at liberty, nine were abroad, four had taken flight and three were in preventive custody pending trial. In its subsequent observations the Government stated that one of the individuals mentioned by the W.F.T.U in its communication dated 7 December 1964 - Mr. Ziller - who had fled the country, had been sentenced in his absence to 30 years' imprisonment by virtue of a judgment, a copy of which was attached to the Government's communication.