Higher Labour Court, Zavascki, Roberto Antonio v. Companhia Minuano de Alimentos, Brasilia, 15 February 2012, Case No. TST-RR-77200-27.2007.5.12.0019
Constitution of Brazil
(1) Norms that define fundamental rights and guarantees are immediately applicable.
(2) The rights and guarantees expressed in this Constitution do not exclude other rights stemming from the system and principles adopted by this text or stemming from international treaties to which the Federal Republic of Brazil is a party.
(3) International treaties and conventions on individual rights that are adopted by both houses of the Congress, in two rounds, by three fifths of the votes of the members of each house will be the equivalent of constitutional amendments.
Right to strike , Freedom of association
Direct resolution of a dispute on the basis of international law
Freedom of association/ Anti-union practice/ Reinstatement in a job/ Direct resolution of a dispute on the basis of international law
In the present case, the enterprise subject of the legal action had been ordered by the lower court to pay compensation for anti-union discriminatory practices, since it had been proven that the dismissal in question had been carried out because the worker had taken part in a stoppage that took place in April 2007.
The Court ruled that the employer’s argument that the dismissal had been due to the worker’s refusal to carry out duties was an invalid one, since an absence from duties is inherent to strike action, and that the behaviour of the employer in violating the principle of freedom of association and the free exercise of the right to strike could not be tolerated.
The Court noted that the application of standards carried out by the lower court demonstrated a full observation of the principle of freedom of association and non-discrimination in full accordance with Article 1 of ILO Convention No. 98, since all workers must be protected against discriminatory acts that violate freedom of association.
Likewise, the Court made reference to Article 1 of ILO Convention No. 111, which states: “1. For the purpose of this Convention the term discrimination includes: a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers’ and workers’ organisations, where such exist, and with other appropriate bodies.” The Court then pointed out that in a democratic state of law, governed by the constitutional values of freedom and the recognition of work as a fundamental right, which guarantees the exercise of the right to strike, the practice of any act that discriminates against participants in strike action must be sanctioned.
The Court concluded that the dismissal of the workers based on their participation in action related to a stoppage constituted a discriminatory practice, since it violated standards of public order (Law No. 7783/89 and Law 9029/95), as well as international treaties (ILO Conventions Nos. 98 and 111) and constitutional standards (articles 3, 5 and 9). It ordered the reinstatement of the worker to their job, doubling the compensation awarded from the date of dismissal.
1 ILO Right to Organise and Collective Bargaining Convention, 1949 (No. 98); ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111); American Convention on Human Rights (“Pact of San José, Costa Rica”).