The right to strike in the public sector in Brazil

Abstract

Page 8 Volume 21 Issue 4 2014 INTERNATIONAL union rights FOCUS ❐ THE RIGHT TO STRIKE Currently, even with the incorporation into national law of the principles of ILO Convention 151 in Brazilian jurisprudence we can note an excessive restriction of the right to strike of public servants, with judgements that not only expand the list of essential services, but also raise the minimum percentage of service maintenance. This makes it practically impossible for them to exercise the right to strike. Despite the institutional recognition of the right to strike, workers increasingly organise protests in the form of work stoppages whereas public administrations refuse to negotiate. On 11 November 2014, the Conservative party of the Brazilian parliament, without any prior dialogue or negotiation with public employees’ organisations, adopted a draft bill that deals with the ‘regulation of the right to strike of public servants ’ in the Joint Committee for Federal Law Consolidation and Regulation of the Constitution. We would like to highlight the following aspects on the aforementioned draft bill: ■ The draft seeks to restrict the possibility of a general strike. Obviously, trade unions of public servants do not accept this restriction. The workers should define if the shutdown will be partial or total, including by evaluating the characteristics of each activity. If the action is considered urgent, it will be defined by the workers, meeting the minimum attendance percentage. In Brazil, nowadays, even without a regulation in a specific law, unions already exercise this concept with responsibility. ■ The draft wants to define ‘ways to break strikes’ which entail a clear intervention in the form of organisation and mobilisation dynamics impacting on the principle of freedom and organisational autonomy, constitutionally guaranteed. The strike is not an ‘end’ for the union, but a means and instrument of struggle. ■ The draft foresees that workers must inform the government at least 10 days before the beginning of the strike. Unions consider that 72 hours is a reasonable time; ■ The draft defines the strike, ‘as partial paralysis, prescribes non-payment of days off, considers the days on strike not worked, and intends to penalise workers on probation, forcing them to compensate the days not worked so as to complete the service time required by law. For unions, this is the deliberate construction of a precedent to break the strength of joint positions, and opens space for summary dismissals. ■ The draft requires a minimum attendance percentage ranging from 40 to 60 percent, and Regulation of collective bargaining and strike action is necessary for all parties as tools to regulate working conditions PEDRO ARMENGOL is Deputy Secretary of Labour Relations with the CUT in Sao Paulo W orkers in the public service in Brazil were not entitled to a collective working relationship with the public administration until the promulgation of the 1988 Constitution. Nor could they: without the right to organise and no right to strike, they could not join trade unions, and thus act jointly or articulate as social partners. They were denied any form of expression of their common interests and desires, as well as the practical means to struggle for them. The 1988 Constitution no longer regards public sector workers as mere subjects, but as collective actors, able to relate effectively with each other and with third parties, notably with the public administration. However, after the recognition of the trade union rights of public servants, the lack of regulation of the right to collective bargaining and the exercise of the right to strike became apparent, even though it is recognised as a collateral instrument and legitimate tool to regulate working conditions. At the same time, the right to collective bargaining is addressed in Convention 151 and Recommendation 159 of the International Labour Organisation (‘ILO’), which have already been ratified and approved by the Brazilian National Congress. Convention 151 and Recommendation 159 of the ILO were approved (with reservations) by the Federal Senate of Brazil, and Legislative Decree 206 of 08 April 2010 guarantees the right to strike to civil servants in item VII Article 37 of the Federal Constitution of 1988, but no specific regulation has been adopted, despite the extension of trade union rights and guarantees that earlier were applicable only to the...