Brazil: Association and bargaining rights for domestic workers

Abstract

lective agreements of domestic workers (Article 7, line XXVI), therefore there is a logical obstacle to recognise the right of collective bargaining for these workers’5 . In 2013, the Federal Constitution was amended giving domestic workers all of the same fundamental rights as other workers, including the right to collective bargaining. This guarantee opens a whole new world of possibilities for these workers, since there is no legal doubt about their right to register as trade unions, nor their right to collective bargaining. An immediate consequence of the constitutional change was an increase in the number of registered trade unions and applications for registration . In 2015, there were 21 domestic workers’ trade unions and 3 employers’ trade unions registered at the Ministry of Labour6 . In the context of the Brazilian corporatist system, however, this increase does not entirely reflect an effective organisation and representation of domestic workers. The same is valid for employers’ trade unions, because in Brazil, employers’ associations are also considered trade unions and have the same legal treatment as workers’ trade unions. To better understand the challenges, it is important to briefly explain the Brazilian system of defining a professional category, the unicity rule and mandatory trade union dues that flow from it. Brazilian corporatist trade union law In Brazil, workers and employers can only organise themselves by professional and economic categories , respectively, and there is no pre-definition by law of the professional categories. The trade union proposes the category it will represent . Each category can only be represented by one trade union within a minimal territory of a municipality, that is, there is no enterprise level trade union. This exclusivity of representation by the trade union (called unicity) is achieved in a first-come, first-served basis, that is, the first trade union that applies for the Ministry of Labour to represent a professional category is the one that will hold that representation without having to demonstrate that they enjoy the support of the majority of workers they propose to represent. Different from a voluntarist trade union regime, there is no certification vote or signing of membership cards by workers. The whole process is done through the Ministry of Labour or decided by the Labour courts (in the case where two trade unions dispute the representation of the same category of workers). The chronological criteria is used in both cases: the first trade union that applies for certification of a certain category will be granted the exclusivity of representation7 . The one trade union that holds the representation The corporatist system produced two dysfunctional consequences: low representativeness of trade unions and a fragmented labour movement INTERNATIONAL union rights Page 20 Volume 22 Issue 3 2015 B razil is an important case in the regulation of domestic work. Not only is it one of the largest employers of domestic workers in the world with six million workers, Brazil has also developed one of the most comprehensive labour rights regimes for the regulation of domestic work in the last two decades1 . But even Brazil faces tough challenges ahead in ensuring that rights already granted by law such as recognition of freedom of association and collective bargaining (FA/CB) are effectively exercised2 . In this article I analyse the compatibilities and incompatibilities of the Brazilian trade union system with domestic workers’ collective organisation and to draw inferences for future policy. The Brazilian case The first domestic workers’ trade union in Brazil was created in 1936 in São Paulo – the Santos Professional Association of Domestic Workers – organising a campaign against live-in domestic workers. The campaign sought to allow domestic workers to live in their own homes. Their argument was that in order to emancipate domestic workers it was essential to deny the prevalent notion that domestic workers were a part of employers’ families3 . Domestic workers’ trade unions in Brazil have played an essential role over the decades in the movement for advancing domestic workers’ rights, even though they were legally recognised as trade unions only in 1988 with the promulgation of the Federal Constitution. Before 1988, they acted as private associations and they could not negotiate nor receive trade union’s dues4 . The domestic workers’ trade unions fought against...