Regional Labour Tribunal of the Third Region, First Chamber, Nunes Da Silva Namir and others v. De Faria Esdron Antonio, 20 November 2006, Case No. 00398-2006-096-03-00-5-RO
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.
Occupational safety and health
Direct resolution of a dispute on the basis of international law
Safety/ Training/ Direct resolution of a dispute on the basis of international law
Following the death of a worker who was cleaning machinery belonging to the enterprise, the worker’s surviving spouse and children took legal action against the employer in the pursuit of compensation for moral and material damages caused by the accident in the workplace, arguing employer liability for the aforementioned accident.
The Court cited article 157, II of the Consolidation of Labour Laws (Consolidação das Leis Trabalhistas, CLT), which states the following: “It is the responsibility of enterprises (…) to instruct workers by means of service orders related to the precautions to be taken to avoid accidents or occupational diseases”; and article 19, paragraphs 1 and 3 of Law 8213/91, which states: “The enterprise is responsible for the adoption and use of collective and individual measures for the protection and security of worker health”. The Court also cited article 10, paragraph 1 of ILO Convention No. 119 ratified by Brazil by means of Decree No. 1255/94, which states: “The employer shall take steps to bring national laws or regulations relating to the guarding of machinery to the notice of workers and shall instruct them, as and where appropriate, regarding the dangers arising and the precautions to be observed in the use of machinery”.
The Court ruled that the employer should have taken measures to inform the worker of the dangers involved in the handling of machinery, as well as the precautions necessary, it being the responsibility of the employer to train workers in the use of production line machinery since the equipment maximizes profits and constitute the nucleus of the employer’s business.
Therefore, there being no evidence that the employer had adequately trained the deceased worker, the lawsuit was partially upheld, and the employer was ordered to pay for the moral damages incurred.