Informe provisional - Informe núm. 233, Marzo 1984

1. 659. The complaint is contained in a communication from the International Confederation of Free Trade Unions (ICFTU) dated 4 August 1983. The ICFTU sent additional information in a communication dated 11 August 1983. The Government replied in a communication dated 28 November 1983.
2. 660. Brazil has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) but has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 661. The ICFTU alleges that on 7 July 1983 the trade unions of the state undertaking "Petrobras" of the Paulinia (Campinas) and Mataripe (Bahía) oil refineries began a strike to obtain better social and economic conditions. The strike led the Federal Government to decree its intervention in the trade unions in the respective refineries and it proceeded to dismiss the trade union leaders and replace them by an administrative comptroller. At the same time and in an arbitrary manner 100 workers of the Paulinia refinery and 200 from the Mataripe refinery were dismissed. The ICFTU goes on to say that on the same date the Metallurgical Workers' Trade Union of Sao Bernardo do Campo also went on strike in support of better economic and social conditions. The authorities reacted in the same way as with the oil workers' trade unions; the union leaders were dismissed and are now being prosecuted and the trade union is being supervised by an official of the Federal Government. Lastly, the ICFTU alleges that the situation, which is compounded by the problems resulting from the economic policy of the Government, led to the decision by numerous trade unions to call a general strike which took place on 21 July; immediately afterwards the Minister of Labour decreed the Federal Government's intervention in the Bankworkers' Trade Union of Sao Paulo and the Underground Transport Workers' Trade Union of Sao Paulo.

B. The Government's reply

1. 662. The Government states that the oil, banking and transportation services are amongst those which are considered essential under Legislative Decree No. 1632 of 4 August 1978, which prohibits strikes in such sectors. This prohibition is included in the Federal Constitution which at the same time as it guarantees Brazilian workers the right to strike also establishes some restrictions to this right in section 162, which stipulates that "strikes shall not be permitted in the public services nor in essential activities which shall be laid down by law". The Government adds that any trade union leader who supports or encourages a strike movement in the public services or essential activities is subject to the sanctions of warning, suspension, dismissal or loss of mandate (section 5 of the above-mentioned Legislative Decree). The Government adds that employees who participate in a strike in the public services or essential activities are committing a serious offence and in such cases the following sanctions may be applied by the undertaking concerned: warning, up to 30 days' suspension, cancellation of the employment contract with dismissal for just cause (section 3 of the Legislative Decree).
2. 663. The Government also states that pursuant to the legal provisions mentioned above and it having been shown that the leaders of the trade unions of the "Workers of the Oil Distillation and Refining Industry of the State of Bahía", the "Workers of the Oil Distillation and Refining Industry of Campinas and Paulinia" (State of Sao Paulo), the "Employees of Bank Establishments of Sao Paulo" (State of Sao Paulo) and the "Workers of the Metropolitan Transport Undertakings of Sao Paulo" (State of Sao Paulo) supported and encouraged a strike movement, these leaders were dismissed from their trade union positions.
3. 664. In the case of the Trade Union of Metallurgical, Mechanical and Electrical Workers of Sao Bernardo and Diadema, the strike which was declared by this organisation infringed not only the legal provisions contained in Act No. 4330/64 but also, and it is important to draw attention to this, recent standard-setting instruments.
4. 665. The Government concludes by saying that the interventions were not therefore the result of the simple exercise of the right to strike, but occurred because the latter had been exercised without respect of the statutes in force, principally in essential services in which strikes are prohibited.

C. The Committee's conclusions

1. 666. The Committee notes that in the present case the complainant has alleged various acts of anti-trade union discrimination and the application of measures of intervention in five trade unions as a result of the strikes held during the month of July 1983 in the oil, metallurgical, banking and metropolitan transport sectors.
2. 667. As regards the strikes held in the oil, banking and metropolitan transport undertakings, the Committee notes that according to the Government, in pursuance of Legislative Decree No. 1632 of 4 August 1978, the activities of the oil, banking and transport services are considered essential activities in which strikes are prohibited. The legislation stipulates that trade union leaders who encourage or support strikes in these sectors may be penalised by dismissal or loss of their trade union mandate and workers who participate in such strikes may be dismissed.
3. 668. The Committee has pointed out on many occasions (see, for example, 226th Report, Case No. 1166 (Honduras), para. 343) that, as one of the essential means whereby workers and their organisations may promote and defend their occupational interests, the right to strike may be prohibited or seriously restricted only in public services or essential services in the strict sense of the term; that the concept of public servant should be confined to those acting in their capacity as agents of the public authority and that essential services should be interpreted as referring to those whose interruption would endanger the life, personal safety or health of the whole or part of the population; otherwise, if legislation defines the public service or essential services too broadly, the principle whereby the right to strike may be limited or prohibited in those sectors would become meaningless. In the present case, the workers of oil, banking and metropolitan transport undertakings are not public officials in the sense set forth above, nor do they perform an essential service in the strict sense of the term [see, for example, General Survey by the Committee of Experts on the Applications of Conventions and Recommendations, (Freedom of Association and Collective Bargaining), ILC, 69th Session, 1983, Report III, (Part 4B), para. 214, 221st Report of the Committee, Case No. 1097 (Poland), para. 84 and 208th Report, Cases Nos. 988 and 1003 (Sri Lanka), para. 336]. In these circumstances, the Committee considers that the prohibition of strike action in the oil, banking and metropolitan transport sectors contained in Legislative Decree No. 1632 on 4 August 1978 is contrary to the principles of freedom of association.
4. 669. Consequently, and in view of the fact that the complainant has stressed that the objectives pursued by the strikes held in the oil, banking and metropolitan transport sectors in the month of July 1983 were consistent with the promotion and defence of the occupational interests of the workers, the Committee requests the Government to take measures as soon as possible with a view to lifting its intervention in various trade union organisations (Union of Workers of the Oil Distillation and Refining Industry of the State of Bahía; Union of Workers of the Oil Distillation and Refining Industry of Campinas and Paulinia; Union of Employees of Banking Establishments of Sao Paulo and the Union of Workers of the Metropolitan Transport Undertakings of Sao Paulo), to re-establishing the trade union leaders of these organisations in their trade union posts, as well as to reinstate such leaders and the workers dismissed for strike action in their jobs. The Committee requests the Government to keep it informed of any measures taken to this effect. Finally, the Committee draws the attention of the Government to the need to amend its legislation, in particular Legislative Decree No. 1632 dated 4 August 1978, so as to ensure that the list of activities in which strike action is prohibited is limited to essential services in the strict sense of the term.
5. 670. As regards the alleged anti-trade union measures taken as a result of the strike held by the Trade Union of Metallurgical, Mechanical and Electrical Workers of Sao Paulo, the Committee notes that, according to the Government, this strike was not only an infringement of Act No. 4330/64 but also of recent standard-setting instruments. The Committee requests the Government to send the text of the provisions which have been infringed and to explain in what way there was infringement so that the Committee may examine the allegations in full knowledge of the facts.