O presente texto tem
por objeto a prática de conduta anti-sindical por parte do Estado Mato Grosso,
ente da República Federativa do Brasil quando da deflagração de greve no setor
da educação em que houve ameaça de prática atentatória liberdade sindical
consubstanciada em ato assinado pelo Procurador Geral do Estado de Mato Grosso
em que se impõe como dever da Administração: I) efetuar o “corte de
pontos” dos servidores grevistas e o consequente desconto, em folha de
pagamento, dos valores correspondentes aos vencimentos e vantagens dos dias de
falta ao serviço, sem que houvesse até então qualquer decisão de órgão autônomo
quanto a ilegitimidade da paralisação; II) destituição dos ocupantes dos
cargos em comissão de livre nomeação que aderirem ao movimento grevista; III)
instauração de processo administrativo disciplinar para a apuração de eventuais
faltas funcionais.
A greve dos
servidores foi deflagrada em razão de decisão legitima e soberana tomada em
Assembleia Geral da categoria devidamente convocada para essa finalidade, e
houve a devida comunicação da deflagração.
Tal decisão foi
tomada com base na autonomia sindical obedecendo rigorosamente o que determina
o Estatuto da Entidade, conforme se comprova através das Atas das Assembleias, com
a seguinte pauta de reivindicações: I) aplicação de aumento salarial
previsto na Lei Complementar n.º 510/2013; II) política salarial sem
defasagem inflacionária com prática da Revisão Geral Anual - RGA instituída
pela Lei Ordinária n.º 10.572/17.
A entidade Sindical, buscando defender a sua autonomia organizativa,
ressalta que: 1º) a greve foi deflagrada por decisão da categoria em
assembleia regularmente convocada, conforme o Estatuto da entidade (Art.3º Art.4º - Lei n.º 7.783/89); 2º) não constitui
abusiva a greve que tenha por finalidade precípua reinvindicação já compromissa
pela Administração e não cumprida (art.14 - Lei
n.º 7.783/89).
Não há meio administrativo ou judicial para que seja cumprido o que determina as Convenções 98 e 151 da Organização Internacional do Trabalho – OIT, das quais o Brasil é signatário, bem como as observações já realizadas pelo Comitê de Liberdade Sindical e tão pouco o Comitê de Peritos, já que:
Não há meio administrativo ou judicial para que seja cumprido o que determina as Convenções 98 e 151 da Organização Internacional do Trabalho – OIT, das quais o Brasil é signatário, bem como as observações já realizadas pelo Comitê de Liberdade Sindical e tão pouco o Comitê de Peritos, já que:
I) o Estado de Mato Grosso está sujeitando os acordos de
revisão e aumento salarial estabelecidos em Lei à política financeira e econômica de gastos intrinsicamente relacionados a
própria discricionariedade dos gestores públicos, política essa atrelada a (in)gerência do Banco Mundial, mesmo que considerando
erroneamente os dados para tanto, com aval do próprio Supremo Tribunal Federal que está a
implementar contraditórios precedentes quanto a não necessidade de cumprimento de direitos previstos em
Lei em razão da suposta “insustentabilidade fiscal” do Estado de Mato Grosso,
não atendendo assim as observações já realizadas pelo Comitê de Liberdade
Sindical e tão pouco o Comitê de Peritos, conforme: Observation (CEACR) -
adopted 2016, published 106th ILC session (2017)[1]; Observation
(CEACR) - adopted 2007, published 97th ILC session (2008)[2].;
II) já deveria
haver Lei em específico no País que regulamente o direito a greve dos
servidores públicos, o que se tem é uma conjunção de decisões judiciais do Supremo Tribunal Federal que impõe
por analogia as legislações do setor privado no que concerne as obrigações
legais aos Sindicatos e não trata igualmente os respectivos direitos nestas
mesmas legislações, não atendendo assim as Convenções 98 e 151 da Organização
Internacional do Trabalho – OIT, já ratificadas pelo Brasil,
conforme será tratado;
A Organização Internacional do Trabalho ainda não assegurar em Convenção o direito a greve, o
Pacto Internacional sobre Direitos Econômicos, Sociais e Culturais assim o
assegura na alínea d) do item 1 e também no item 2), vejamos, ipisis literis:
“1. Os Estados Partes
do presente Pacto comprometem-se a garantir: d) O direito de greve,
exercido de conformidade com as leis de cada país. (...) 2. O presente artigo
não impedirá que se submeta a restrições legais o exercício desses direitos
pelos membros das forças armadas, da política ou da administração pública.”
O ato em questão descumpre a Lei do Brasil, pois ela determina no parágrafo 1º do artigo 6º da Lei n.º 7.783/89 que: “Em nenhuma hipótese, os meios adotados por empregados e empregadores poderão violar ou constranger os direitos e garantias fundamentais de outrem.”
Também em virtude da ratificação da Convenção Relativa as relações de trabalho na função
pública, 1978, a de número 151, foi incorporada ao ordenamento jurídico pátrio
brasileiro, a proteção quanto ao ato da Administração Pública em intentar prejudicar
o servidor público em razão de participação de atividade da sua respectiva
organização sindical, vejamos:
“ARTIGO 4
1 - Os
trabalhadores da função pública devem beneficiar de uma protecção adequada
contra todos os actos de discriminação que acarretem violação da liberdade
sindical em matéria de trabalho.
2 - Essa protecção
deve, designadamente, aplicar-se no que respeita aos actos que tenham por fim:
(...) b) Despedir um trabalhador da função
pública ou prejudicá-lo por quaisquer outros meios, devido à sua filiação numa
organização de trabalhadores da função pública ou à sua participação nas
actividades normais dessa organização.”
O presente Comitê ao longo de sua respeitada história tem
reiterado a recomendação de que os entes nacionais respeitem o direito a
liberdade sindical, sobretudo o direito a greve, vejamos:
“O
Comitê sempre reconheceu o direito de greve como um direito legítimo a que
podem recorrer os trabalhadores e suas organizações em defesa de seus
interesses econômicos e sociais.” (Recompilação de 2006, parágrafo 521).
“O
Direito de greve dos trabalhadores e de suas organizações constitui um dos
meios essenciais de que dispõem para promover e defender os seus interesses
profissionais” (Recompilação de 2006, parágrafo 522).
“Ninguém
deve ser penalizado por estar realizando ou por tentar realizar uma greve
legitima” (Recompilação de 2006, parágrafo 660).
A Comissão de Peritos já definiu pela aplicabilidade da
Convenção 98 em relação aos fatos atinentes, pois os presentes trabalhadores do
setor público “não atuam como órgão do poder público”[3].
A Convenção 98
que trata do Direito de Sindicalização e de Negociação Coletiva, foi aprovada
no Brasil pelo Decreto Legislativo n.º 49/52 e promulgada pelo Decreto
33.196/53, estabelece que:
Art. 1 — 1. Os
trabalhadores deverão gozar de proteção adequada contra quaisquer atos
atentatórios à liberdade sindical em matéria de emprego.
2. Tal proteção
deverá, particularmente, aplicar-se a atos destinados a:
b) dispensar um
trabalhador ou prejudicá-lo, por qualquer modo, em virtude de sua filiação a um
sindicato ou de sua participação em atividades sindicais, fora
das horas de trabalho ou com o consentimento do empregador, durante as mesmas
horas.
Tem sido observada a inaplicabilidade no setor público no
Brasil em diversas circunstâncias, conforme os relatos contidos nas seguintes
recentes observações: I) Observation (CEACR) - adopted 2017, published 107th
ILC session (2018)[4]; II) Observation (CEACR) -
adopted 2016, published 106th ILC session (2017)[5].
III) deveria haver Lei em específico no País que
regulamente a definição de prática anti-sindical, havendo, portanto, maximização
da insegurança jurídica e proporcionando uma total discricionariedade aos
Administradores Públicos, não atendendo assim as observações já realizadas pelo
Comitê de Liberdade Sindical e tão pouco o Comitê de Peritos, conforme conforme
as seguintes observações e relatórios: I) Direct Request (CEACR) -
adopted 2014, published 104th ILC session (2015)[6] ; II) Observation (CEACR)
- adopted 2006, published 96th ILC session (2007)[7]; III) Direct Request
(CEACR) - adopted 2013, published 103rd ILC session (2014)[8] ; IV) Direct Request
(CEACR) - adopted 2009, published 99th ILC session (2010)[9].
[1] Subjection of collective agreements
to financial and economic policy. The Committee recalls that for several years
it has been referring to the need to repeal section 623 of the CLT, under the
terms of which 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. The Committee has
also been requesting the Government to take measures to amend Act No. 10192, of
February 2001, issuing additional measures under the Plan Real, section 13 of
which provides that automatic price index-related wage increases or adjustments
may not be included in agreements, accords or dissidios coletivos. In this
regard, the Committee notes that: (i) in its 2014 observations, the ITUC
indicated that these provisions are used to impose restrictions on the
collective bargaining of wages in public and mixed enterprises; (ii) the
Government indicates that restrictions on the scope of collective agreements
are established on an exceptional basis, and principally in the context of the
provision of public services; and (iii) in this context, the Government adds
that the constitutional protection of the general interest may require the financial
clauses of collective agreements not to prejudice the wage balance on the
market or price levels in the national economy. In this regard, emphasizing
that Article 4 of the Convention requires the promotion of free and voluntary
collective bargaining, the Committee recalls 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. The Committee, therefore 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.
[2] The Committee notes the Government’s
report.
The Committee recalls that in its previous observation it
noted the comments from the International Confederation of Free Trade Unions
(ICFTU), now the International Trade Union Confederation (ITUC), referring to
the exclusion of collective bargaining in subcontracting enterprises; the
imposition of court awards in collective bargaining at the request of a single
party; the dismissal of trade union leaders in violation of their trade union
immunity; the formulation of blacklists; the murder of leaders of rural
workers’ organizations and one trade unionist in the footwear sector. In this
respect, the Committee notes that the Government: (1) states that the national
legislation does not prevent workers in subcontracting enterprises from forming
trade unions and, once registration has been obtained from the Ministry of
Labour and Employment, they can engage in collective bargaining. Numerous
service enterprise trade unions exist in the country, including those which
provide services by means of subcontracting; (2) states that, by virtue of
Constitutional Amendment No. 45 of 2004, the agreement of both parties is
required for resorting to “dissidio coletivo” (judicial arbitration); and (3)
refers to the legislative provisions which afford protection to unionized
workers. The Committee observes that the Government has not supplied any
information on the alleged acts of violence, and it recalls that freedom of
association may only be exercised in a situation where fundamental human rights
are fully respected and guaranteed, in particular those relating to human life
and safety. The Committee requests the Government to launch investigations in
this respect, with a view to clarifying the facts and imposing penalties on the
perpetrators.
Article 4 of the Convention. Compulsory arbitration. In its
previous observation, the Committee noted that under Constitutional Amendment
No. 45 of 8 December 2004 (reform of the judiciary; amendment of section 114)
it was established that “dissidio coletivo” may only be resorted to if both
parties agree (the judiciary may not be unilaterally called on to intervene)
and requested the Government to provide information on the application of this
constitutional amendment in practice. The Committee notes that the Government
states that under the draft trade union reform, prepared in the context of the
National Labour Forum (FNT), one of the priorities for which provision is made
is the encouragement of collective bargaining at all levels and in all spheres
of representation, removing the dialogue between workers and employers from the
scope of the State, thereby strengthening the autonomy of the parties, and
maintaining the State in its role of mediator. Under the trade union reform,
labour tribunals are designed to become bodies for the voluntary settlement of
disputes. The Government states that, the discussions in the FNT led to the
consolidation of a proposal for a constitutional amendment, which is before the
National Congress, and a proposal for a preliminary draft Act on trade union
relations. The Committee requests the Government to provide information in its
next report on all progress made with regard to the draft trade union reform
and, in particular, on any provisions adopted in relation to arbitration as a
means of dispute settlement, and to supply statistical information on the
number of collective disputes (dissidios coletivos) dealt with by the labour
tribunals since the adoption of the Constitutional Amendment of 2004.
Right to collective bargaining in the public sector. The
Committee recalls that for several years it has been referring to the need for
public employees who are not engaged in the administration of the State to have
the right to collective bargaining. The Committee observes that the Government
has not supplied any information in this respect. The Committee therefore urges
the Government to provide information in its next report on any measures
adopted to ensure that public employees who are not engaged in the
administration of the State have the right to collective bargaining. In
particular, recalling that it noted in its previous observation that the
Government had indicated the existence of constitutional limitations on the
public administration’s freedom of action, making collective bargaining in the
public sector difficult, and that in June 2003, in the federal public service,
the Permanent National Negotiation Board (MNNP) was formed, composed of the
representation of eight ministries and all the representative bodies of federal
public servants, the Committee requests the Government to indicate whether any
constitutional amendments have been proposed in this regard, and to provide
information on the issues addressed by the MNNP.
The Committee recalls that in its previous observations it
also referred to the need to repeal section 623 of the Consolidation of Labour
Laws (CLT), under the terms of which the provisions of an agreement or accord
in conflict with the orientations of the Government’s economic and financial
policy or the existing wages policy shall be declared null and void. The
Committee notes that the Government has not supplied any information in this
respect, and emphasizes that, except in exceptional circumstances required by
economic stabilization policies, it is the parties to the collective bargaining
process who are best placed to determine wages and should be the ones to do so,
and considers that the restriction contained in section 623 of the CLT affects
the independence of the social partners during collective bargaining and
impedes the development of voluntary collective bargaining procedures between
employers or their organizations and organizations of workers for the
establishment of conditions of employment. The Committee once again requests
the Government to take steps to repeal the aforementioned legislative provision
and to inform it in its next report of any measure adopted in this respect.
Finally, the Committee notes the comments from the ITUC,
dated 28 August 2007, reiterating some of the comments previously submitted by
the ICFTU concerning the application of the Convention. The ITUC also indicates
that the decisions of the National Labour Forum (FNT) submitted to the National
Congress were rejected and that no government initiative exists for changing
trade union structures and, in addition, refers to acts of anti-union
discrimination in the education sector. The Committee requests the Government
to communicate its observations in this respect.
The Committee is raising a number of other points in a
request addressed directly to the Government.
[3] HOSGES-AEBERHARD, Jane; ODERO DE
DIOS, Alberto. Princípios do Comitê de Liberdade Sindical Referentes a Greves.
Disponível em: https://www.ilo.org/brasilia/publicacoes/WCMS_231057/lang--pt/index.htm Acessado em: 05.06.19.
[4] The Committee notes the allegations made in the
observations of the trade unions that the extension of the definition of
autonomous worker, as a result of new section 444-B of the CLT, will have the effect
of excluding workers covered by that definition from the trade union rights
recognized in both the legislation and the Convention. Recalling that the
Convention applies to all workers, with the sole possible exception of the
police and the armed forces (Article 5) and public servants engaged in the
administration of the State (Article 6), the Committee requests the Government
to provide its comments on the observations of the trade unions in relation to
the impact of section 444-B of the CLT. The Committee also requests the
Government to provide information on the other aspects of Act No. 13.467
relating to the rights enshrined in the Convention.
[5] Subjection of collective agreements
to financial and economic policy. The Committee recalls that for several years
it has been referring to the need to repeal section 623 of the CLT, under the
terms of which 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. The Committee has
also been requesting the Government to take measures to amend Act No. 10192, of
February 2001, issuing additional measures under the Plan Real, section 13 of
which provides that automatic price index-related wage increases or adjustments
may not be included in agreements, accords or dissidios coletivos. In this
regard, the Committee notes that: (i) in its 2014 observations, the ITUC
indicated that these provisions are used to impose restrictions on the
collective bargaining of wages in public and mixed enterprises; (ii) the
Government indicates that restrictions on the scope of collective agreements
are established on an exceptional basis, and principally in the context of the
provision of public services; and (iii) in this context, the Government adds
that the constitutional protection of the general interest may require the
financial clauses of collective agreements not to prejudice the wage balance on
the market or price levels in the national economy.
In this regard, emphasizing that Article 4 of the Convention
requires the promotion of free and voluntary collective bargaining, the
Committee recalls 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. The Committee, therefore 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.
[6] The Committee noted in its previous
direct request the observations made in 2013 by the Single Confederation of
Workers (CUT), which alleged violations of the Convention. The Committee once
again requests the Government to provide its comments in this respect.
Articles 4, 5 and 6 of the Convention. Protection against
anti-union discrimination and interference; and facilities afforded to workers’
representatives. The Committee previously noted that on several occasions the
Government had informed the Committee on Freedom of Association (Cases
Nos 2635, 2636 and 2646) 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”. The Committee also noted
that, during a tripartite seminar organized in 2013 by the Ministry of Labour
on the “democratization of the State and participation of stakeholders:
anti-union practices and the regulation of Convention No. 151”, high-level
Government representatives and those of representative workers’ organizations
emphasized the importance of addressing as a priority the regulation of
protection against anti-union discrimination. The Committee notes that Act No.
8112 of 11 December 1990 provides for the immunity from dismissal of union
leaders for up to one year after their term of office has ended. Union leaders
are entitled to trade union leave. Moreover, under the Criminal Code (section
199), the use of serious violence to prevent involvement in a trade union is
punishable by imprisonment and fines. Under these conditions, the Committee
hopes that the Government will take all the necessary measures to adopt
legislation that explicitly provides remedies and sufficiently dissuasive
penalties for acts of anti-union discrimination against members of a public
service trade union, and acts of interference, and requests it to provide
information in its next report on any progress achieved in this respect.
The Committee also requests the Government to provide
information on facilities other than trade union leave that are afforded to
representatives of public employees’ organizations in order to enable them to
carry out their functions promptly and efficiently (for example, the collection
of trade union dues, prompt access to the management and the workplace,
availability of premises, office equipment, availability of notice boards,
etc.).
Articles 7 and 8. Participation of workers’ organizations in
determining terms and conditions of employment. The Committee notes the Government’s
indications in its report that negotiating bodies exist in various areas and
that the result of the negotiations has to be submitted to Congress (or to
municipal legislative chambers) as draft legislation. In its previous direct
request, the Committee welcomed the Government’s indication that, in
consultation with workers’ organizations, a proposal was being developed for
the amendment of the legislation in order to establish a standing federal
bargaining system, providing permanent mechanisms for dialogue, negotiation and
the mediation of disputes, and that these proposed regulations would act as a
guide for state and municipal authorities. The Government reiterates this
information in its report and indicates that a seminar with broad participation
was held in May 2013 on a future proposal for draft legislation. The Committee
requests the Government to provide information in its next report on any
developments in this respect and hopes to note progress.
[7] The Committee notes the comments of
the International Confederation of Free Trade Unions (ICFTU), of 10 August
2006, referring to the exclusion of collective bargaining in subcontracting
enterprises; the imposition of court awards in collective bargaining at the
request of a single party; the dismissal of trade union leaders in violation of
their trade union immunity; the slowness of the judicial authorities; the
formulation of blacklists; the murder of leaders of rural workers’
organizations and one trade unionist in the footwear sector. In this respect,
the Committee requests the Government to provide its observations on the
ICFTU’s allegations. In view of the seriousness of the acts of violence
reported by the ICFTU, the Committee recalls that freedom of association can
only be exercised in conditions in which fundamental human rights, and in
particular those relating to human life and personal safety, are fully
respected and guaranteed.
The Committee also requests the Government, in the context of
the regular reporting cycle, to provide its observations for the Committee’s
next session in November-December 2007 on all the issues relating to the
legislation and the application of the Convention in practice raised in its
previous observation in 2005 (see the 2005 observation, 76th Session).
[8] Article 1 of the Convention.
Protection against anti-union discrimination. The Committee recalls that in its
previous direct request it expressed the hope that, in the context of the work
of the Labour Relations Council (CRT), it would be possible to prepare draft
legislation explicitly setting out remedies and sufficiently dissuasive
sanctions against acts of anti-union discrimination. The Committee notes the
Government’s indication that in the CRT discussions have gone further
concerning a Bill to prohibit anti-union practices in the country and that, in
this connection, the issue of anti-union discrimination was addressed at a
seminar organized by the Ministry of Labour and Employment with ILO support.
The Committee requests the Government to provide information in its next report
on any progress in this respect and reminds it that it can have recourse to the
technical assistance of the Office, if it so wishes.
Article 4. Promotion of collective bargaining. In its
previous comments, the Committee requested the Government to take measures to
amend Act No. 10192 of February 2001 concerning additional measures under
the Plan Real, section 13 of which provides that automatic price index-related
wage increases or adjustments may not be included in agreements, accords or
dissidios coletivos, so that the parties to collective bargaining can decide
freely whether they wish to agree on automatic wage adjustment, particularly in
collective agreements of long duration. While noting that the Government does
not refer to this matter in its report, the Committee recalls that the parties
to collective bargaining should be able to decide freely and voluntarily
whether they wish to agree on automatic wage adjustments, particularly in
collective agreements of long duration, and that limitations on collective
bargaining in relation to economic matters should only be possible in the event
of exceptional circumstances with a view to protecting jobs and the
sustainability of enterprises or institutions. The Committee once again requests
the Government to take the necessary measures to amend the legislation as
indicated above, in so far it limits the possibilities of the parties in wage
bargaining. The Committee asks the Government to provide information in its
next report on any progress achieved in this respect.
Finally, the Committee notes the various measures adopted by
the authorities to promote the application of the provisions of the Convention,
including significant measures relating to mediation and tripartite activities.
[9] Article 1 of the Convention. The
Committee notes that the Government refers in its report to the provisions of
the Constitution of the Republic and the Consolidation of Labour Laws, which
give effect to this Article of the Convention. In this regard, the Committee
notes various complaints examined by the Committee on Freedom of Association
(Cases Nos 2635, 2636 and 2646) alleging acts of anti-union discrimination. The
Committee observes that in the context of these cases the Government 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 this case; in
order to resolve the issue the Government, together with workers and employers
within the National Labour Forum (FNT), has prepared a proposal for trade union
reform (369/05, currently in the final stages before the National Congress)
which contains a more complete definition of anti-union acts and provides for
penalties which may be imposed on offenders by the Ministry of Labour and
Employment; the draft Bill on trade union relations currently before the
National Congress contains a list of situations which constitute anti-union
conduct (making recruitment or continued employment subject to membership,
non-membership or termination of membership of a trade union organizations,
dismissing or discrimination against a worker on the grounds of his or her
membership or activities in a trade union organizations, participation in a
strike or representation in the workplace, etc.); any sound proposal to resolve
this issue must reflect the provisions of Conventions Nos 98 and 135 and
establish effective mechanisms for the imposition of penalties on offenders, a
point which raises differences of opinion between employers and workers as to
the amount of the fines to be imposed for anti-union conduct; the proposal put
forward by the FNT fills the legislative gap by defining the anti-union acts
which may be committed by employers and workers, while at the same time
imposing penalties which ensure the effectiveness of the legislation; and it
was not possible to achieve a consensus in the FNT on the issue of penalties,
in particular with regard to the amount of the fine to be imposed for
anti-union conduct, but while this has delayed the passage of the draft Bill in
the National Congress, it has in no way diminished the Government’s expectation
that the draft will be approved as soon as possible.
In these circumstances, the Committee hopes that, in the
context of the draft trade union reform to which the Government refers,
remedies and sufficiently dissuasive penalties against acts of anti-union
discrimination will be established explicitly with a view to ensuring that
effect is given in practice to Article 1 of the Convention. The Committee
requests the Government to provide information in its next report on any
measure adopted in this respect.
Article 4 of the Convention. In its previous direct request,
the Committee asked the Government to indicate the provision by which Decree
No. 3735 of 24 January 2001 is considered to have tacitly repealed Decree
No. 908 of 31 August 1993 (the latter Decree establishes restrictions on
collective wage bargaining in public and mixed enterprises, making real wage
increases contingent upon certain criteria, such as increased productivity, the
distribution of dividends or the alignment of the overall remuneration of
employees with current levels in the labour market). The Committee takes due
note of the Government’s indication that, in accordance with the Act
introducing the Civil Code, when a subject is regulated by a new provision, the
previous provision is automatically repealed; accordingly, with the adoption of
Decree No. 2735 of 2001, establishing general rules relating to State
enterprises, Decree No. 908 of 1993 is considered to be repealed.
In its previous comments, the Committee also requested the Government
to take steps to amend Act No. 10192 of February 2001, concerning additional
measures under the Plan Real, section 13 of which provides that automatic price
index-related wage increases or adjustments may not be included in agreements
or dissidios colectivos, so that the parties to collective bargaining can
decide freely whether they wish to agree on automatic wage adjustment,
particularly in collective agreements of long duration. The Committee notes the
Government’s indication that, in contrast to the comments of the Committee, the
intention of this provision, in addition to avoiding the re-indexing of the
economy, was to promote free bargaining between the parties, as it is for the
parties to determine wage adjustments in each category. The Government adds
that account also needs to be taken of the issue of inflation which, even
though at a lesser level, still affects the Brazilian economy. According to the
Government, the prohibition on the automatic adjustment of wages does not
restrict the freedom of bargaining between the parties. In this respect, the
Committee considers that the parties to collective bargaining should be able to
decide freely and voluntarily whether they wish to agree on automatic wage
adjustments, particularly in collective agreements of long duration. In these
circumstances, the Committee requests the Government to take the necessary
measures to amend the legislation as indicated above, in so far as it limits
the possibilities of the parties in wage bargaining.
