Regional Labour Tribunal of the Third Region, Second Chamber, Gomes de Araújo, Geraldo v. Fiat Automóveis S.A – Filial Mecanica Fire, Belo Horizonte, 31 August 2010, Case No. 01777-2009-142-03-00-1 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
Duty of safety/ Duty of information/ Damage/ Responsibility/ Direct resolution of a dispute on the basis of international law
In the present case, both the employer and the worker lodged appeals against the ruling of the lower court which ordered the payment of wages corresponding to the period of sick leave caused by a work-related condition plus compensation for moral damages. The employer sought the total reversal of the decision, while the employee sought to increase the amount awarded in compensation for moral damages.
The worker, having carried out his duties during a period of 20 years as an industrial operator in the sector of plant machinery production, presented a case for damages against the employer based on hearing loss.
The Court demonstrated a strong tendency to give primary importance to international standards on fundamental rights, emphasizing the importance of ILO Conventions, and in particular those ratified by Brazil. In line with this tendency, the Court also referred to Constitutional Amendment 45/2004, which represents a significant step forward in the recognition of international treaties and conventions, since paragraph 3 of article 5 states that “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”.
Taking the above into account the Court directly applied the provisions of article 13 of ILO Convention No. 148. It states that all parties concerned should be adequately and suitably: a) informed of potential occupational hazards in the working environment due to air pollution, noise and vibration; and b) instructed in the measures available for the prevention and control of, and protection against, those hazards.
The Court concluded that the employer had not sufficiently ensured the protection of the worker against the harmful effects of noise in the working environment and fully upheld the sentence subject to the appeal.