News and developments
The Importance of Trade Unions and Their Role in Social Protection at Times of Crisis
In times of crisis, such as the one we are currently living through because of the coronavirus pandemic, unions are even more relevant. If well conducted, union actions can mitigate the adverse effects of the crisis on working conditions and on the maintenance of jobs.
This evidences the need to strengthen social movements that, as will be further analysed herein, have experienced their own crisis of representativeness in recent decades. Therefore, the Brazilian trade union system must necessarily be reformed, especially to finally implement the genuine freedom of association, as advocated by the ILO and other international players. This is what we discuss in this text.
[1] The Constitution of Uruguay has followed this line since 1934, as Oscar Ermida Uriarte points out. [2] Signed by King John, better known as John Landless, before ecclesiastical authorities and barons. On this topic, for all, check COMPARATO, 2013. [3] Estado Novo, or the Third Brazilian Republic, was the Brazilian political regime established by Getúlio Vargas on November 10, 1937, which was in force until January 31, 1946, and which was characterised by the centralisation of power, nationalism, anti-communism and authoritarianism. [4] The “ABC Paulista” is an industrial region located in Greater São Paulo, Brazil. The expression refers to three smaller cities south of São Paulo city: Santo André, São Bernardo do Campo, and São Caetano do Sul. The ABC region is widely known in Brazil and abroad because of the great number of international companies, particularly car manufacturers, in its area. National media and organisations consider ABC a powerful industrial pole and birthplace of the labour union movement that fought against dictatorship in the 1970s and 1980s. In this region the Workers' Party (“Partido dos Trabalhadores” - PT) was created the activities and popularity of which made the unionist Luiz Inácio Lula da Silva, or just Lula, known nationally. He became president of Brazil in 2002. [5] It is curious to observe this reaction signalled by Prof. Nascimento: how did the unions react to a project in which they all participated?
Authors - Nelson Mannrich and Alessandra Barichello Boskovic
-
The Historical Role of Trade Unions in Gaining and Consolidating Social Rights
-
Crisis in Trade Union Representation
-
Freedom of Association and other Challenges: An Urgent Review of the Current Union Model in Brazil
3.1 Freedom of Association: The Basis of Trade Unions
In order to enable the rescue of union movements, as mentioned above, it is imperative to urgently review the Brazilian trade union model. The most elementary aspect of reform is implementing freedom of association, which can be considered the cornerstone of trade union organisation in the world. Freedom of association is one of the pillars of trade union law. Through this fundamental guarantee, workers organise themselves for greater efficiency at collective bargaining (second pillar), the main assignment of unions in Brazil. They use strikes (third pillar) when necessary and as a last resort to "force the employer" to get to the bargaining table. But, as can be seen, it all revolves around a fundamental principle: freedom of association. In other words, if the main function of unions is collective bargaining and the latter is their main raison d’être, freedom of association appears as the basis of collective self-protection and, therefore, their first generation fundamental law. Freedom of association implies autonomy enjoyed by groups to organise themselves freely, according to their own interests, respecting the laws governing the country. The debate involving freedom of association and collective bargaining itself is not only linked to the fundamental rights aspect and the guarantees thereof vis-à-vis the state, as will be seen later, but especially because of the importance that unions have in collective labour relations, in a scenario of permanent advancement and transformations of the labour laws to ensure the improvement of workers' conditions. This has been demonstrated since the first unions emerged during the Industrial Revolution and has continued to this day. In this long trajectory, unions have proven their ability to overcome enormous obstacles and vicissitudes in such combative and conflicting relationship between capital and labour and in the permanent need for adaptation, especially nowadays, when there is an actual reconstruction of labour laws in progress. Hence the importance of this topic in the field of international law, particularly from the tireless effort of the ILO (International Labour Organization) to provide a safe ground to serve as a basis for the actions of national governments, especially in view of the governability of collective labour disputes. In this sense, there is an important set of international rules as far as the ILO is concerned: Conventions 87 and 98, always referred to and celebrated, because they refer to certain sensitive aspects such as freedom of association and collective bargaining. If international law, especially in the context of international labour conventions, is fertile in terms of flexibility and possible adaptability, favouring the adoption of its treaties by the most different countries, it is not in regard to certain doctrines, such as freedom of work, non-discrimination and, particularly, freedom of association. This principle is adamant, not subject to arrangements to accommodate anyone’s interests. Its implementation is fundamental, not only in the scope of collective labour relations, but because of what it represents for strengthening and consolidating democracy in general and substantiating all fundamental rights in particular. Oscar Ermida Uriarte points out three assumptions for implementing an appropriate union system: interdependence between trade union rights and other human rights; promotion of trade unionism and recognition of total freedom of association (Uriarte 2000, p. 116).(i) interdependence between trade union rights and other human rights.
For the aforementioned author, the first presupposition for implementing freedom of association has to do with the effectiveness of human rights. This is because the development of freedom of association or its actual implementation depends on the pre-existence of other human rights and vice versa: freedom of association depends on the full exercise of human rights. In other words, freedom of association is not self-sufficient – its existence depends on other civil and political freedoms – the latter constituting the basis of the former and at the same time thereby being conditioned. In this sense, the very effectiveness of individual rights depends on a system of effective freedom of association. Such freedom is so relevant that it is presented as an "indispensable element to real democracy" (Uriarte 2000, p. 117). Ermida Uriarte also notes that democratic consolidation is not limited to political pluralism, as the effective implementation of the rule of law is linked to free actions by both trade unions and employers' associations. This is because trade union law is not only enforced by the recognition of freedom of association, it is also linked to "the freedoms of man as a whole" (Uriarte 2000, p. 118).(ii) promotion of trade unionism.
According to Article 11 of Convention 87, member states that ratify it are obliged to take the necessary measures to ensure that workers and employers can freely exercise the right of unionisation. In other words, it is up to the member state to promote the organisation of the union[1], as well as to sanction laws supporting union activity.(iii) recognition of total freedom of association.
There must be unrestricted freedom for the creation of trade unions, their organisation and membership. It also implies adequate protection for exercising freedom of association.3.2 Freedom of Association in the Context of Public Freedoms
For Montesquieu, freedom is the good that allows individuals to enjoy the other individuals, which also applies to freedom of association. Freedom of association was recognised in France only in 1884. Before that, there was no sense in discussing the topic because trade unions as we know them today simply did not exist (in this respect, cf. Israel 2005, p. 583).. According to Jean-Jacques Israel, the expression "public freedoms" has been traditionally preferred to “human rights” in France since the 19th century, although the notion of human rights is older, as can be seen in the Declaration of Human and Citizen Rights of 1789 (Israel 2005, p. 6). In Marcel Waline's teaching, public freedom corresponds to any and all faculties recognised and guaranteed to citizens by the constitution, or at least by law (Waline 1963, p. 651). Therefore, public freedoms indicate the set of civil and political rights to which citizens are entitled, and in the space of which the state can only practice abstention, as occurs with the right to property and the right to freedom of movement, among others. According to Georg Jellinek, it is up to the state to recognise human rights to emphasise the positivist character thereof, to the detriment of a naturalistic view. Consequently, in addition to recognising the positivist character of these rights, they will take form in an unequal relationship between the individual and the state (Jellinek apud Ramos 2018, p. 55). Within this perspective, one of the situations in which the individual comes before the state, in addition to the status of submission or subordination, is in the subjective status, which Jelinek calls negative status libertatis. According to André Ramos de Carvalho, here we are faced with a set of limits that are imposed on the government, forcing it to respect individuals' own rights in their private lives (Ramos 2018, p. 56). According to this standing, the government is supposed to perform negative action, i.e., to abstain from acting. It is in this scenario that throughout history the limitations that individuals have imposed on monarchs and power holders since the Magna Carta of 1215 have been observed[2]. The theory of generations or dimensions of human rights was built in this perspective, but this study is only interested in those of the first generation, which imply negative actions by governments, with regard to the rights of freedom, integrated by so-called civil and political rights. They are related to the liberal revolutions, as André Ramos de Carvalho explains (Ramos 2018, p. 58). Therefore, freedom of association, because it integrates the set of public freedoms, in addition to representing an important achievement for citizens in the face of the oppression of the state, is an expression of collective self-protection. In this scenario of public freedoms, freedom of association gains greater contours when examining classical texts, such as in the writings by John Stuart Mill. The author was one of the most celebrated representatives of the English liberal movement of his time, which he expressed in the book On Liberty (Mill 1859). Celso Lafer, in the presentation of Mill's book, translated into Portuguese, addresses the distinction between modern freedom and ancient freedom. The latter, characterised by the participation of citizens in collective decisions, was based on the Athenian democratic model; the former is characterised by the power that individuals have to act within the framework provided by law, within the "sphere of non-impediment" scope that is aimed at imposing limits on power, and restricting the interference of people or even the government in the private sphere of individuals. According to Celso Lafer, Stuart Mill "deals basically with modern freedom, i.e. (...) the nature and limits of power that society can lawfully exercise over the individual" (Mill 1991 (orig. 1859), pp. 18-19). According to Stuart Mill, even democratic processes with balance of powers are not free from oppression brought about by the "social tyranny of the majority", so it is essential to ensure spaces that will facilitate the expression of several forms of freedom, including freedom of association. Stuart Mill does not address what is referred to as freedom from want, but only civil or social freedom, when examining what he calls the "nature and limits of power that society legitimately exercises over the individual". For the author, at the time, freedom was understood as "protection against the tyranny of political rulers", so that the community would draw the limits of power that would be tolerated by the ruler. But when the interest and will of the rulers were identified with those of the people, it would make no sense for the nation to protect itself against its own will (ibid, pp. 45-47). However, the notion that "people need not limit their power over themselves" was possible when a popular government was nothing but a dream. In view of that, it is possible that some people might want to oppress part of their own, and there is need for caution against any type of abuse of power (ibid, p. 48). Elizabeth Balbachevsky explains that in the lifetime of Stuart Mill (1806 to 1873) "the hearty question that challenged the imagination of English political elites was the 'peaceful' incorporation of the mass of workers depleted by industrialization, who knocked on the doors of the political system". In such a context, one must take into account the thoughts of Stuart Mill, whose work intends to be "a compromise between liberal thought and the democratic ideals of the 19th century": political participation is not a privilege of minorities. According to Elizabeth Balbachevsky, Stuart Mill is a pioneer with regard to two very dear concepts in political science: "defense of pluralism and social diversity against interference of the State and of public opinion (the latter, the tyranny of 'prevailing opinion', is the worst, because it is more systematic and recurrent); and the perspective of open, multipolar systems, in which the administration of dissent predominates over the imposition of broad consensuses" (Balbachevsky 1985, pp. 193-198). As it turns out, although many view classical authors such as John Stuart Mill with skepticism, their reading remains obligatory, as it is still valid and inspiring.3.3 The Distant Freedom of Association: A Revision of the Brazilian Model
Even in the 21st century, Brazil has not yet implemented freedom of association, resulting in serious damage to genuine collective bargaining, which ends up compromising the consolidation of democracy. But what can explain this omission? In a seminal text, Amauri Mascaro Nascimento examines this issue in depth. He begins his argument by recognising undeniable efforts to implement modern trade union legislation, which ended up not happening. But in the face of new attacks, the matter deserves to be revisited (Nascimento 2007, p. 647). Is it possible to identify and evaluate the causes of the failure to implement freedom of association? Nascimento asks: what are the problems that have made union reform impossible? Is the nature of such problems legal, political or both? But, after all, are the unions interested in such reform? For Amauri Mascaro Nascimento, the first reason is cultural: the weight of this set of ideas about the union system is very heavy; it corresponds to inherited beliefs that our will does not seem to want to abandon. The preservation of this heritage by the unions is linked to something they do not want to give up. For the author, there is also another level: the regulatory framework. There are records of laws from 1903 and 1907, which today have only historical value. Despite the repercussions of anarcho-syndicalism, the movement was muffled without leaving supporters. Our true history goes back to the "Estado Novo"[3], which laid the roots on which our unionism flourished. There is our "union genetic heritage", which has lasted to this day, and the cradle of Brazilian unionism, on which unions have been shaped and become accustomed to surviving in the shadow of the government and without any kind of competitiveness. The rupture with this corporate model, which should have already occurred in the 1946 Constitution, as occurred in European countries from which we partially copied such a model, was put on the agenda by the ABC[4] movement, in a strong confrontation with the military government in force in Brazil at the time. The most significant union leaders of that time, among which Luiz Inácio Lula da Silva stands out, demanded prompt reform, dissatisfied with the continuity of the outdated union model. This movement gained strength when the National Labour Forum was installed (already under the administration of President Lula), with emphasis on important leaders, such as José Francisco Siqueira Neto. Osvaldo Martines Bargas was its coordinator and the Minister of Labour and Employment at the time, Ricardo Berzoini, its president. According to the movement, the proposed amendment to the constitution would "enable a broad union reform, within the principles of freedom and union autonomy." The government at the time acknowledged the structural outdatedness of union laws and was committed to making changes. It intended to create free and autonomous unions in the face of the state, and thus promote collective bargaining with a view to resolving disputes and strengthening democracy. In order to implement broad freedom of association and union autonomy, it was necessary to overcome certain constitutional obstacles, especially Article 8 of the 1988 Brazilian Federal Constitution. Therefore, in addition to the draft constitutional amendment, the National Labour Forum – a tripartite and equally-balanced body – was in charge of drafting the bill that would finally implement union reform. This bill was based on the so-called Final Report on Trade Union Reform, forwarded to the President of the Republic, in 2004. Although ambitious, the bill was not even sent to the National Congress, for several reasons, despite expectations that fuelled the hope that finally everything would be changed, as the political scenario was extremely favourable: the president of the Republic was the same union leader who had dared to rise up against the old regime in the ABC Paulista. The failure of the National Labour Forum was not just the result of the complexity of the topics being proposed, which generated resistance and mistrust. It was more than that: it was Brazilians’ old habit of resisting any kind of change that came into play. Moreover, the bill was nothing but an adjustment of old ties (which were criticised so much, but which Brazilian society was not prepared to address, and so continued with merely apparent changes). As Octavio Bueno Magano said, it was necessary to demolish this old building to facilitate the reconstruction of a new building, on flattened and clean land. In short, as soon as it was published, the report of the National Forum "was condemned by the union bases,"[5] not only for the excess of powers conferred on the central unions, but by the unbalanced strengthening of union summits. Amauri Mascaro Nascimento concludes that the obstacle for the trade union movement to approve that bill was to import the "irradiation system of representativeness" (Nascimento 2007, p. 651). Despite innovations, two points included in the Draft Union Relations Law that generated consternation can be highlighted: the matter of representativeness (art. 10); and the scope of action of the unions (which would be allowed up to the limit of the municipality – art. 14). It is clearly perceived that maintaining government intervention was considered important, according to the old expression: "everything within the State, nothing outside the State, nothing against the State". Concerning the proposal for representativeness, as suggested by the aforementioned draft law, in order to better understand the intended setback, it is interesting to mention the case of Italy, where representativeness has become measured in the scenario of companies, not union summits, as in the proposal by the National Forum. In Italy, according to Article 19 of Law 300 of May 20, 1970, trade union representation can take place in any production unit, and 15 employees suffice (art. 35). In view thereof, Mattia Persianni concludes that the law sealed the aspiration of unions to be present in the factories (Persianni 2011, p. 51). For Amauri Mascaro Nascimento, this model of representation in Italy "results from the ability of the bases to impose themselves on the employer" (Nascimento 2007, p. 649). As for the scope of union representation in Brazil, there is widespread fear, even today, of losing control of the unions if doors are opened for the organisation of business unions, which is a contradiction, if the desire to achieve freedom of association is sincere. But it is well known that this was the formula found to make the leadership of traditional unions unviable while at the same time strengthening the central unions. In short, everyone wants to change, as long as everything remains as it has always been.Final Comments
This analysis highlighted the important historical role played by unions in achieving better working conditions. Social movements, especially strikes and collective labour negotiations, have made it possible for several rights to be obtained and government standards to be adapted from the general to the particularities of each economic activity or locality. This important role is even more relevant during times of crisis. Truly effective and representative trade union movements have the power to mitigate the damaging effects that social and economic crises cause, contributing not only to the improvement of working conditions, but also to the maintenance of jobs. The coronavirus pandemic is an excellent example of how collective rules regulating telework and work carried out from home have become usual in Brazil, securing the necessary legal basis. The relevance of trade unions in times of crisis shows how important it is to strengthen social movements that, as discussed above, have been facing their own crisis of representativeness for years. To this end, it is imperative to reform the Brazilian trade union system in order to break with constitutional limitations and democratise the organisation of trade unions. Undoubtedly, the main premise of this reform is implementing freedom of association, as recommended by the ILO, among other international players. However, the main challenge is not legal, but cultural.Bibliography
Balbachevsky, Elizabeth, “Stuart Mill: liberdade e representação”, In Os clássicos da política, organised by Wefort, Francisco C. (São Paulo: Ática, 1985) Bobbio, Norberto, A era dos Direitos (Rio de Janeiro: Editora Elsevier, 2004) Comparato, Fábio Konder, A afirmação histórica dos direitos humanos (São Paulo: Saraiva, 2013) Ermida Uriarte, Oscar, La Flexibilidad (Montevideo: Fundación de Cultura Universitaria, 2000) Fairbrother, Peter & Yates, Charlotte A. B. Unions in crisis, unions in renewal? In Trade unions in renewal – a comparative study, coordinated by Fairbrother, Peter & Yates, Charlotte A. B.) (New York: Continuum, 2003) Fausto, Boris, História do Brasil (São Paulo: Editora da Universidade de São Paulo, 2003) Fiorito, Jack, Jarley, Paul & Delaney, John Thomas, “National union effectiveness in organizing: measures and influences,” In Industrial and Labor Relations Review, Vol. 48, No. 4, July (1995) Getman, Julius, Restoring the power of unions: it takes a movement (New Haven: Yale University Press, 2010) IBGE, Sindicatos: indicadores sociais 2001 (Rio de Janeiro: IBGE, 2002) Israel, Jean-Jacquies, Direito das Liberdades Fundamentais (São Paulo: Manole, 2005) Lafer, Celso, “Apresentação à obra”, In Mill, John Stuart, Sobre a Liberdade, (Ed. Petrópolis, Ed. Vozes, 1991) Lipovetsky, Gilles, A sociedade pós-moralista: o crepúsculo do dever e a ética indolor dos novos tempos democráticos (São Paulo: Manole, 2005) Maior, Jorge Luiz Souto, História do Direito do Trabalho no Brasil: Curso de Direito do Trabalho, Volume I: Parte II (São Paulo: LTr, 2017) Martin, Hans-Peter & Schumann, Harald, A armadilha da globalização: o assalto à democracia e ao bem-estar social (São Paulo: Globo, 1998) Mill, John Stuart, Sobre a Liberdade (Ed. Petrópolis, Ed. Vozes, 1991) Nascimento, Amauri Mascaro, Compêndio de Direito Sindical (São Paulo: LTr, 2005) Nascimento, Amauri Mascaro, “Problemas que dificultam a reforma sindical”, In Revista LTr, vol 71, no. 6, junho (2007) Persianni, Mattia, Diritto Sindacale (Pádua: CEDAM, 2011) Prado Junior, Caio, História Econômica do Brasil (São Paulo: Editora Brasiliense, 2008) Ramos, André de Carvalho, Curso de Direitos Humanos (São Paulo: Saraiva, 2018) Rorty, Richard, Contingência, ironia e solidariedade (São Paulo: Martins Fontes, 2007) Silver, Beverly, Forças do trabalho: movimentos de trabalhadores e globalização desde 1870 (São Paulo: Boitempo, 2005) Waline, Marcel, Droit Administratif (Paris: Sirey, 1963) World Trade Organization, World Trade Report 2012, online http://www.wto.org/english/res_e/booksp_e/anrep_e/world_trade_ report12_e.pdf Wright, Erik Olin, “Working-class power, capitalist-class interests, and class compromise”, In American Journal of Sociology, v. 105, n. 4, January (2000) Yates, Michael D, Why unions matter (New York: monthly review press, 2009)[1] The Constitution of Uruguay has followed this line since 1934, as Oscar Ermida Uriarte points out. [2] Signed by King John, better known as John Landless, before ecclesiastical authorities and barons. On this topic, for all, check COMPARATO, 2013. [3] Estado Novo, or the Third Brazilian Republic, was the Brazilian political regime established by Getúlio Vargas on November 10, 1937, which was in force until January 31, 1946, and which was characterised by the centralisation of power, nationalism, anti-communism and authoritarianism. [4] The “ABC Paulista” is an industrial region located in Greater São Paulo, Brazil. The expression refers to three smaller cities south of São Paulo city: Santo André, São Bernardo do Campo, and São Caetano do Sul. The ABC region is widely known in Brazil and abroad because of the great number of international companies, particularly car manufacturers, in its area. National media and organisations consider ABC a powerful industrial pole and birthplace of the labour union movement that fought against dictatorship in the 1970s and 1980s. In this region the Workers' Party (“Partido dos Trabalhadores” - PT) was created the activities and popularity of which made the unionist Luiz Inácio Lula da Silva, or just Lula, known nationally. He became president of Brazil in 2002. [5] It is curious to observe this reaction signalled by Prof. Nascimento: how did the unions react to a project in which they all participated?
Authors - Nelson Mannrich and Alessandra Barichello Boskovic