The right to strike in the public sector in Brazil

Workers 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 private sector. As a result, public sector workers continue to be denied their full rights.

Two observations should be made in relation to the text of ILO Convention 151. In the first place, the rights laid down in favour of public servants in Brazil have been recognised constitutionally. The second is that the Constitution, which deals with fundamental rights of the individual, has predominance over the legal system, and defines the Supreme Court of Brazil. This should also have an impact on the interpretation of national legislation on the subject, including the application of Law 7,783 / 89 in 2007, which regulates the right to strike in the private sector in Brazil.

In turn, the lack of regulation on the right to strike for public servants also has a severe impact on public service users (citizens who are faced by long strikes). Civil servants are often compelled to return to work on the basis of legal judgments that point to the illegality of the strike, because of the lack of appropriate legal rules. The result is cyclic strike action.

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 at the same time the proposal considers 90 percent of public services as ‘essential services’, that will have to ensure at least 60 percent coverage . This would means the consolidation of the total restriction policy to exercise the right to strike of public employees in Brazil, which for now is recognised in the constitution.
• The draft includes the replacement of workers on strike by contract workers. This is an antidemocratic proposal. Depending on the activity, this may be unconstitutional when applied to exclusive state activities which may not be exercised by contract workers, for example fiscal services. Such an attempt already occurred in 2012 in Brazil, when Decree 7777 / 12 was issued and subsequently denounced as an anti-union practice by the ILO.
• The draft includes the provision to ‘prohibit conducting strikes sixty days before the elections of the president, governors, senators, state and federal Deputies, Mayors and Councillors’. In a country where we have two elections every two years, this is another intervention in the freedom and autonomy of organisation and struggle of civil servants in Brazil. It is clear that there is no intention on behalf of these law-makers to improve the current system and to favour the resolution of conflicts. At the moment strikes occur in Brazil for lack of space of the treatment and resolution of conflicts, since the claims of workers are treated in a non-uniform way, generating different approaches in relation to identical claims, thus clashing with the constitutional principle of non-discrimination. It is therefore necessary to establish a contractual system, in line with constitutional principles, that foresees the object and scope of legal negotiations, defines the levels of coverage and articulation, the legal effects of the agreements at each level, solutions for deadlocks as well as the definition of possibility and contours of arbitration and / or mediation, and immediate regulation in law according to the principles of C151. This will allow Brazil to depart from an ideological vision that looks at the public servant as a part of a large machine, unable to link his work to the social role. PSI affiliates in Brazil have been campaigning for the implementation of C151 in law for the last 10 years. It is unacceptable that the parliament will now debate further restrictions and anti-union measures that will only further exacerbate social tensions in public services, instead of making a contribution to a social environment of dialogue and negotiation.  The case of Brazil shows that the right to strike and the right to collective bargaining are intrinsically linked to each other. There has to be a willingness on behalf of both parties to come to the negotiating table otherwise no results can be achieved. The current situation of cyclic strikes without any clear outcome is detrimental for the workers and to all public service users.

 Historical background of the right to strike in Brazil

• 1938 - Decree Law 481/38 defines the strike as a crime
• 1939 - Decree Law 1237 / 39, which created the Labour Court system, provides for penalties in the event of strike, suspension and dismissal;
• 1940 - The Penal Code (Decree Law 2848 / 40) criminalises work stoppages in public services;
• 1943 - The Consolidation of Labour Laws - CLT (Decree Law 5452 / 43) establishes penalties for union workers on strike;
• 1946 - Under international pressure Decree Law 9070 / 46 is signed and the strike is no longer considered a crime, and protected by law;
• 1964 – the Strike Law comes into force (Law 4330 / 64), which finishes with the legality of the strike, and increases the capacity of state intervention in trade unions;
• 1967 - The Constitution of 1967 ensures the right to strike of private sector workers, banning it, however, for those working in the public service and for activities considered essential;
• 1988 - The new Constitution guarantees the right to strike for workers in private and public sector
• 1989 - Publication of the Law 7783 / 89, which regulates the right to strike in the private sector;
• 2007 - The Supreme Court decides to apply to civil servants, by analogy, the Strike Act of the private sector;
• 2008 - President of the Republic of Brazil (Lula) sends ILO Convention 151 and Recommendation 159 on labour relations in the public service to Congress for approval;
• 2010 - Brazilian National Congress adopts Convention 151 and Recommendation 159
• 2013 - Decree 7944 / 13, of the Presidency of Brazil, promulgates Convention 151 and Recommendation 159;
• 2014, November 11 - The Joint Commission for the consolidation of federal laws and regulations of the constitution of the Brazilian National Congress, adopts a bill proposal that deals with ‘the regulation of public servants the right to strike in Brazil’, which aims to restrict the right to strike.