Brazil: The Impact Of ILO´S Conventions Regarding Freedom Of Association In Brazil

The present article intends to analyse the impact and effectiveness of ILO Conventions Numbers 87 (1948) and 98 (1949), concerning Freedom of Association, in Brazil. The first part deals with some issues of freedom of association regarding the referred Conventions and the second part makes reference to the compliance record of Brazil in order to investigate the impact and effectiveness of such Conventions.

Conventions No. 87 and 98 were chosen because these two Conventions contain the most comprehensive set of standards on freedom of association to be found in international level, and the ILO has highly developed system of supervisory machinery and procedures with which to promote them and to oversee their application¹.

I - Freedom of Association: Conventions Numbers 87 and 98.

‘The very foundation of the trade union movement is the need for workers to join forces in their collective defence and for the advancement of their interests’². The concept of freedom of association may be extracted from Convention No. 87, the ‘Freedom of Association and Protection of the Right to Organize Convention’, which was adopted by the General Conference of the ILO in 1948. This convention aims to promote the principle of freedom of association in order to improve work conditions, stating that: workers’ and employers’ organizations are free to establish and join their own choosing organization (Article 2), they have the right to formulate their own constitution and rules without external interference (Article 3), what means internal autonomy of these organizations; they have the right to join and establish federations and confederations and to affiliate international organizations (Article 5). The Convention also makes reference to the domestic law of State members, which shall be respect by workers’ and employers’ organizations, however the domestic law shall not impair the guarantees promoted by this convention (Article 8). It is important to mention also that this convention defines the term organization as ‘any organization of workers or of employers for furthering and defending the interests of workers or of employers’ (Article 10) and states that each State member of the ILO that ratify such convention has to take action to promote the free exercise of the right to organize, either by workers and employers (Article 11).

The Convention Number 98 (1949) ‘Right to Organize and Collective Bargaining Convention’ also sets up guarantees to the right of freedom of association, due to its promotion of the protection against anti-union discrimination and acts of external interference in the establishment, functioning or administration of trade unions (Articles 1 and 2). This convention also encourages the development of voluntary negotiation between workers’ organizations and employers or employers’ organizations; in order to regulate employment conditions resulting in collective agreements (Article 4). States, which have ratified this convention, shall take the necessary measures to ensure the respect for the right to freely organize and promotion of appropriate conditions to free collective bargaining (Article 3 and 4). It is worthy to note that the right to collective bargaining ‘is the expression in practice of freedom of association in the world of work’³.

The right of freedom of association expressed in these Conventions, and specifically in Convention Number 87, article 3, implies the right to strike⁴ also, even so this right is not expressly stated there; it, ‘internationally, has been recognised as a fundamental right of workers’⁵ .in order to protect their interests related to working relations. There is also a ‘general consensus that the respect for civil and political rights is necessary to the exercise of trade unions rights’⁶, thus the protection of these rights is important to the promotion of the right of freedom of association due to their interdependence.

It is worthy to mention that the ILO Declaration on Fundamental Principles and Rights at Work, adopted in 1998, recognizes four main areas, which shall be respected and promoted for all Members, even Members who have not ratified the Conventions related to these principles. One of these principles is freedom of association and the right to collective bargaining (Article 2 a). This Convention establishes an annual follow-up concerning non-ratified fundamental Conventions based in reports from all Members-States and a Global Report, which aims to provide a global picture regarding each area covered and verifies the effectiveness of ILO’s assistance in order to determine priorities for future actions (Annex I, II, III).

The right of freedom of association is important in order to bring a balance of powers in the working relations, due to the fact that, as L Betten points out, ‘individual workers can be controlled by the more powerful employer, once they combine their forces, they can became a powerful force’⁷, or at least there can exist a sort of equality between the parties in the negotiation of work conditions. Therefore, these organizations must be free of intervention or discrimination⁸. The ILO’s Experts Advisers also note that ‘without respect for the principle and right of freedom of association and effective recognition of the right of collective bargaining, there can be no progress in relation to the other categories of principle’⁹ promoted by the ILO Declaration on Fundamental Principles and Rights at Work.

Following, some issues regarding freedom of association will be examined aiming to analyse some inconsistencies of the Brazilian legal system and the influence of the mentioned ILO Conventions, which have been exerted on this country.

In order to analyse the influence and impact of ILO standards on freedom of association in Brazil, one might check firstly if the related ratified conventions have been implemented in the national legislation and also in practice. It can be verified by the ILO reports on its supervisory system based on ratified Conventions and, regarding non-ratified Conventions, the annuals follow-up and Global Reports related to freedom of association may be useful to examine the impact and effectiveness of such Conventions. Regarding Brazil, it has ratified just Convention Number 98 and not yet the Convention Number 87.

2.1 - The Convention Number 98 and Brazil:

Brazil ratified Convention Number 98 in 1952; then ILO has made individual observations about the compliance of the Convention through ILCCR¹⁰ and CEACR¹¹ reports. It is noted that although the current Federal Constitution contain provisions protecting workers and trade union leaders against anti-union discriminatory acts (including penal sanctions on employers who infringe it), there exists some inconsistencies to the Convention, such as: restrictions on the right of collective bargaining of public servants (their conditions of work are governed just by specific law), obstacles to wage negotiation and conditions of employment related, continued application of section 623 of the "Consolidation of Labour Laws", which allow the Government to intervene in collective agreements that are not in accordance with the wage policy and compulsory settlement of collective disputes by labour courts¹². All these restrictions are incongruent with the principles of independence and autonomy of the parties and the voluntary nature of the negotiations, which are fundamental principles to an effective realization of collective bargaining¹³.

The CEACR reports also notes the necessity to repeal the mentioned section 623; the revision of the compulsory settlement of disputes by the judicial authority, which should be replaced by a voluntary arbitration and the need for public servants not engaged in the administration of the State to have the right to collective bargaining. The Brazilian Government, in its reports, has constantly promised law reforms in order to change the situation and currently a "National Labour Forum" has been established (2004) aiming to democratize labour relations and adapt the legislation in order to implement in full the ILO Conventions relating freedom of association and collective bargaining. ¹⁴

2.2 - The Convention Number 87 and Brazil:

Brazil has not ratified the Convention Number 87; it would appear that some reasons for this would be the existence of some inconsistencies to the principle of freedom of association, which remain in its current Federal Constitution. Although the Brazilian Constitution embodies "full freedom of association" (Article 5, paragraphs XVII to XX), prohibiting State interference in such organizations, it also imposes trade union monopoly by prohibiting the creation of more than one trade union representing an occupational or economic category in an territorial area, which cannot be smaller than the area of the Municipality (Article 8, II). The unification imposed by law is a clear infringement of the right of freedom of association established by Convention Number 87 (article 2), because it lets workers or employers without the capability to freely establish their own organizations; consequently enterprise-based trade union is not allowed for example. It could be said that the choice for a trade union pluralism or monopoly shall be taken by workers or employers and not be legally imposed¹⁵. Thus, the Brazilian legislation does not provide a "full freedom of association".

Moreover, the Brazilian Constitution has established a compulsory trade union contribution, which is applied to all workers, independently if they are members or not of trade unions. Such provision is not compatible to Article 3 of Convention Number 87, because it infringes the ‘very concept of freedom of association with others also implies freedom not to associate with others or not to join unions’¹⁶. Furthermore, this tax is ‘incompatible with the principles freedom of association, which presupposes financial independence’¹⁷, so the public authorities should not have this role of managing such contribution (as it happens in Brazil).

It might be said that since 2001, the Brazilian Governments have made promises in its reports¹⁸ to reform the legislation concerned in order to abolish the trade union monopoly and the mandatory trade-union contribution; amend the regulatory power of the Labour Courts and so on. However some attempts to change the text of the Constitution have failed (shelved), the current Government intends to make a "Trade Union Reform" during its term. Furthermore, as mentioned in this article before, a National Labour Forum has been established in 2004, with representatives from the government, workers and employers in which the priorities were: ‘ratification of convention 87; review of the system of financial support to trade unions (trade union tax); a new framework for trade union organization and representation (to replace the monopoly); stronger collective bargaining rights etc’¹⁹.

It is noted that the ILO has provided technical cooperation in national tripartite seminars in Brazil in order promote discussion about the obstacles to ratification of Convention Number 87²⁰. It plays an important role in raising awareness of the existent inconsistencies to the right and principle of freedom of association, thus impacting in possible solutions for problems by the promotion of the ILO standards.

It seems that ILO has exerted great pressure and technical cooperation in the country concerned in order to encourage the effective implementation of the Conventions Numbers 87 and 98, but the political will needs to effectively emerge in order to promote the necessary changes in the national legislation and consequently in the practice of the work relations. Even the ILO Global Report highlights the ‘voluntary, persuasive and promotional nature of the ILO system and the results achieved’ and states that … ‘the ILO supervisory system helps ensure adherence to obligations voluntarily acquired through a process of ratification of ILO International Conventions’²¹, illustrating the fact that ‘no single solution is valid for all situations and the complementary nature of the various types of ILO action, traditional supervisory work organs and more promotional activities, as the context of the Declaration follow-up’²². Therefore, it would appear that:

It might be concluded that in general and in Brazil the regular process of ILO supervision of ratified Conventions and currently the annual follow-up concerning non-ratified fundamental Conventions ‘means that the impact of ILO standards on national legislation can be established clearly, along with difficulties encountered in harmonizing national legislation with this standards’²⁴. Being possible to assert that at least Brazil is attempting to bring its legislation into line with the Conventions Numbers 87 and 98, what demonstrates the great impact of ILO’s work in there.

GV Potobsky ‘Freedom of Association: The Impact of Convention No. 87 and ILO Action’ (1998) 137 ILR 195, 202.

Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work ‘Your Voice at Work’ (2000) (19/04/2005).

L Swepston ‘Human Rights Law and Freedom of Association: Development through ILO Supervision’ (1998) 137 ILR 169, 182.

L Betten International Labour Law (Kluwer Law and Taxation Publisher The Netherlands 1993) 78.

L Swepston ‘Human Rights Law and Freedom of Association: Development through ILO Supervision’ (1998) 137 ILR 169, 185.

Compilation of annual reports by the International Labour Office (2001, 2002, 2003, 2004 and 2005) Brazil . (19/04/2005)

Compilation of annual reports by the International Labour Office (2005) Brazil (19/04/2005).

B Gernigon, A Odero and H Guido ‘ ILO Principles Concerning Collective Bargaining’ (2000) 139 ILR 33, 34.

CEACR Individual observation concerning Convention No. 98, Brazil (2002 and 2004) (19/04/2005).

Individual Observations on the Conference Committee on the Application of Conventions and Recommendations – ILCCR.

Individual Observations of the Committee of Experts on the Application of Conventions and Recommendations – CEACR.

ILCCR Examination of individual case concerning Convention No. 98, Brazil (1989, 1991, 1998) (19/04/2005).

L Betten International Labour Law (Kluwer Law and Taxation Publisher The Netherlands 1993) 74.

Review of the annual reports under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work (2001) (19/04/2005).

GV Potobsky ‘Freedom of Association: The Impact of Convention No. 87 and ILO Action’ (1998) 137 ILR 195, 221.

H Dunning ‘The Origins of Convention No. 87 on Freedom of Association and the Right to Organize’ (1998) 137 ILR 149, 149.

Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and Rights at Work ‘Your Voice at Work’ (2000) (19/04/2005).

L Betten International Labour Law (Kluwer Law and Taxation Publisher The Netherlands 1993) 67.

L Swepston ‘Human Rights Law and Freedom of Association: Development through ILO Supervision’ (1998) 137 ILR 169, 177.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.