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The historical role played by trade unions is undeniable, particularly in the context of collective bargaining and the resolution of collective labour disputes. In fact, not only the union movements, but also (and especially) collective bargaining, have led to the acquisition of numerous rights and a more appropriate adjustment of government rules to the technical, cultural, and social specificities of each economic activity or locality.
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.
The Historical Role of Trade Unions in Gaining and Consolidating Social Rights
Trade unions have always played a significant historical role in the acquisition of social rights, especially labour rights. From 1917 to 1920, Brazilian unions promoted several strikes for better working conditions. Such trade union movements resulted in the acquisition of several labour rights (e.g., the prohibition on children under the age of 12 being able to work) during the 1920s and 1930s.
At the beginning of the 20th century, Brazil underwent an intense urbanisation process, resulting in the industrialisation movement. As Caio Prado Júnior points out, industrialisation occurred mainly due to investments made by coffee farmers (Prado Junior 2008, p. 264). Capitalist accumulation was still an essentially restricted individual practice in Brazil. Only individuals who had managed to raise enough funds to establish themselves on their own and independently invested capital in the industry made huge profits with their crops, particularly coffee. For example, after 1907, when coffee allowed a large margin of income thanks to the valuation policy, but its planting was limited, in addition to the fear of recurrence of the crisis, many of those profits were applied to manufacturing. Actually, from 1910 on, industrialisation developed very rapidly.
At the end of the 19th century, the city of São Paulo rapidly grew into a manufacturing centre, especially because it was located near the main coffee-growing areas. However, the rapid industrialisation process was not accompanied by a corresponding increase in workers’ rights. Working conditions were precarious, and the presence of children in industrial complexes was amazingly common.
Therefore, social movements were intense during this period. Souto Maior points out that, from 1917 to 1920, just in São Paulo, 108 labour strikes occurred (Souto Maior 2017, p. 130). Undoubtedly, the 1917 General Strike, which lasted for several days, stands out. Boris Fausto lists the main demands of the 1917 strike: wage increases; prohibition of employing minors under 14 years of age; the abolition of night work for women and workers under the age of 18; a limit of an eight-hour workday, with a 50% mandatory pay increase for overtime; an end to work on Saturday afternoons; job tenure; respect for the right of association (Fausto 2003, p. 300).
Labour movements of the time were organised around the unions, largely as a consequence of the high immigration flow, mainly of Italian workers, who had brought such ideals with them. Souto Maior highlights how essential trade unions were to the workers’ movements, pointing out that revolutionary unionism was an effort to build a working identity, as well as a tool for defending the unity of the working class and the fight for better living and working conditions (Souto Maior 2017, p. 134).
Due to popular and trade union appeals, labour legislation underwent profound changes in the subsequent period. The Federal Constitution of 1934, promulgated by President Getúlio Vargas, raised social rights, especially labour rights, to constitutional level.
During this period (1920-1934), some executive orders establishing workers’ rights stand out. Executive Order No. 3,724, of January 15, 1919, regulated occupational accidents (art. 1), imposing on employers a duty to indemnify the injured worker or his family, except in cases of force majeure or exclusive fault of the employee (art. 2). Executive Order No. 4,982 of December 24, 1925, established the right to a remunerated annual rest period of fifteen (15) uninterrupted days (art. 1). In 1927, Executive Order No. 17,943-A of October 12 prohibited minors under 12 years of age from working (art. 101). Executive Order No. 21,364, of March 4, 1932, set limits on working hours in the industry – eight hours per day and 48 hours per week (art. 1). For employees at banks and banking institutions, Executive Order No. 23,322 of November 3, 1933, established six hours as maximum daily working hours, with a weekly total of 36 hours (art. 1).
As it turns out, the outstanding labour rights had a legal framework. In 1934, however, the number of rights increased and they became constitutionally secured. The following stand out: a) prohibition of different pay for the same job, based on age, gender, nationality or marital status (art. 121, Paragraph 1, “a”, of the CF/34); b) minimum wage (art. 121, Paragraph 1, “b”, CF/34); c) prohibition of employing minors under 14 years of age (art. 121, Paragraph 1, “d”, CF/34); d) weekly rest, preferably on Sundays (art. 121, Paragraph1, “e” of CF/34); e) daily working hours limited to eight (art. 121, Paragraph1º, “c”, CF/34); f) indemnity to the employee dismissed without cause (art. 121, Paragraph1, “g”, CF/34).
Unlike what is often thought, social rights were not freely and spontaneously granted by the government. These rights were achieved by the workers’ struggles and demands. Indeed, social rights are different from government charitable activities. Norberto Bobbio points out that one of the main characteristics of human rights, in which social rights are included, is their historicity (Bobbio 2004, p. 31). Human rights are historical rights: they gradually emerge from struggles and consequent changes in living conditions. Moreover, the conquest of rights related to work in Brazil could not be dissociated from historicity.
Thanks to the trade union movements, orchestrated by the unions and guided by revolutionary unionism, the government began to intervene in labour relations to guarantee minimum rights.
Amauri Mascaro Nascimento reports that unionism emerged as a workers’ reaction, based on solidarity and the defence of their interests on the one hand, and, on the other, as a revolt against the capitalist mode of production (Nascimento 2005, p. 41).
For a long time, coalitions were considered crimes in several countries. Until the first half of the 19th century, laws in France, England and the United States provided for imprisonment. Due to the rise of liberal thinking, governments around the world began to repeal laws that criminalised coalitions (Nascimento 2005, p. 46).
From then on, all over the world, trade unionism began to be structured following two main concepts: the liberal type, in which “law took care of organising the system, regulating the means, not the ends,” ensuring freedom of union and collective bargaining and sealing anti-union practices; and the Soviet-Leninist type, which rejected free-trade unionism and maintained trade unions controlled by the government (Nascimento 2005, p. 51-53).
The corporate trade union system led to the organisation of social classes through government regulatory actions and, according to Nascimento (2005, p. 54), invalidated the spontaneity of unionism. Its main techniques were: limitations on union plurality (union unity); official union framework imposed by the state; union recognition letter granted by the state in a discretionary way; and compulsory union dues, among others.
In both the liberal and the corporatist union systems, the strength of the union movements stems from their leaders’ bargaining power, which is manifested in scenarios of claims and strikes, as well as in collective bargaining.
Trade unions contribute to the achievement and consolidation of social rights not only because they force public authorities to secure rights, but also because they secure specific guarantees and protections to their leaders through collective labour agreements. This second path has gained even greater relevance in times of economic or social crisis, like the current scenario of the new coronavirus pandemic.
Erik Olin Wright acknowledges the existence of two major sources of bargaining power that can be used by workers to enforce their interests regarding their employers: associational power and structural power (Wright 2000, p. 962).
Associational power derives from the collective organisation of workers through unions. Although not as effective as structural power, Wright believes that this is the main form of power given to workers in general because it is up to them, and only them, to build a strong organisation, so that any worker, in theory, can enjoy associational power.
On the other hand, workers may enjoy structural power only because of their position in the economic system, and this is subdivided into “power within the labour market” and “power within the workplace.”
Power within the labour market results directly from restricted labour markets, whether due to scarce skills and high demand from employers, low levels of general unemployment, or workers’ ability to exit the market and survive from sources of income other than their salaries.
Power within the workplace comes from the strategic location of a certain group of workers in a key industrial segment. This power is conferred on workers involved in well-integrated production processes, in which a stoppage at an essential point is capable of causing disruption at a much larger scale than at just that point. This is the case when entire production lines are hampered by unrest in only one of its segments, or when corporations that rely on just-in-time supply are completely paralysed by a strike by workers in the rail industry.
When workers began to use their bargaining power in defence of their interests in a systematised way, capital began to respond with three main measures, which follow a recurring pattern: spatial, technological or product/financial nature (Silver 2005, pp. 53-81).
The spatial solution is to shift the production to new locations where the workforce is relatively cheaper and more easily controllable. The technological solution consists of process innovation by introducing significant changes in production organisation, especially through automation, reducing dependence on human labour. Finally, the product solution is characterised by the displacement of capital to new segments and product lines less subject to competitiveness in more radical situations. Industry capital might migrate to financial speculation (financial solution).
The above-mentioned dynamics may have been responsible for weakening union movements around the world in recent decades. This crisis in trade union representation seems to have even more pronounced contours in developing countries, such as Brazil. This is what will be discussed below.
Crisis in Trade Union Representation
Even before the labour law reform of 2017 (Law No. 13,467/17) – which made it optional to pay union dues and, therefore, abruptly reduced the main source of funding of trade unions – it is possible to see evidence of a crisis of unionism.
A study conducted by the Brazilian Institute of Geography and Statistics (IBGE 2002, p. 29) shows that the rate of unionisation of the economically active population remained constant from 1992 to 2001, at 23%. However, the number of workers’ unions has grown much more rapidly than that of unionised workers. As a result, the average size of labour unions, measured by the relationship between the number of members and trade unions, decreased between 1992 and 2001. By way of example, unions representing urban employees and liberal professionals shrank, respectively, by 23% and 19% (IBGE 2002, p. 30).
The downward trend of union activities, even before the 2017 reform, raises questions about the causes thereof. Among the culprits are employers, governments and the unions themselves. Fiorito, Jarley and Delaney explain:
Among the “suspects” are union themselves. Various observers have cited undemocratic practices, insufficient rationalization, unwillingness to innovate, overly narrow goals, insufficient or poorly focused organizing effort, and reliance on a ‘service model’ of unions that fails to activate rank-and-file workers. […] Although many of the criticisms are complementary, some are potentially in conflict: too little versus too much centralization, for example, or a need for greater rationalizations – operating in a more ‘business-like’ manner – versus a need for more democracy (Fiorito, Jarley & Delaney 1995, p. 614).
Peter Fairbrother and Charlotte Yates clarify that the trend of contraction of union participation is global and stems from structural factors, especially significant changes in the labour market, such as greater flexibilisation of labour standards and the migration of industrial activities to the services segment (Fairbrother & Yates 2003, p. 1).
But the most used argument to explain the alleged crisis of union movements is that, at the end of the 20th century, the hyper-mobility of productive capital established a peculiar labour market, in which workers around the world are compelled to compete with each other.
By moving – or simply threatening to move – production to other regions or countries, large corporations have created strong competitive pressure among the growing mass of disorganised workers, which has weakened workers’ bargaining power, starting what Beverly Silver (2005, p. 21) calls the “race to the bottom” in terms of wages and working conditions on a global scale. The hyper-mobility of capital has indeed weakened the sovereignty of states. And when governments become unable to effectively control capital flows, their ability to protect the wellbeing of their citizens and some other workers’ rights, including welfare state and substantive democracy, will also diminish (Silver 2005, pp. 21-22).
Bargaining power has weakened because governments that choose to maintain expensive social pacts are subject to mass abandonment of capital, as corporations worldwide prospect the highest possible return on their investments. From this point of view, the greatest consequence of the race to the bottom would be the pressure suffered by governments to reduce social welfare costs and provide the highest possible profitability in their territories, in order to attract (or maintain) investments (Martin & Schumann 1998, pp. 17-22).
Another argument supporting the existence of a crisis in union movements is based on the characteristics of the current productive market. During the 20th century, industrial activity was the highlight of the international market, but at the end of the 20th century and the beginning of the 21st century, the service segment became an important share of this market – which has become even more prominent with several new technologies.
According to the World Trade Organization (WTO 2012), in 2011 international trade in goods and services handled US$18.2 trillion and US$4.1 trillion, respectively. Of all business transactions in that year, 18.6% referred to services.
There is reasonable doubt around whether workers in this segment will have enough bargaining power to lead the trade union movements in the 21st century, as workers in the automotive industry did in the last century. This is because the services modality is generally intended for individual customers, and therefore workers are geographically dispersed. Thus, the workers in this segment have very little structural bargaining power in the workplace, which was precisely one of the main reasons for the great automobile union force in the 20th century.
When the structural bargaining power of workers is small, their victories will depend on strong associative power. It is possible for workers to be organised in strong trade unions, as is the case in some of these segments. Thus, despite little bargaining power in the workplace, associative bargaining power can strengthen structural market bargaining power, thus reinforcing the importance of the association of the view that the right to strike is an important tool in the search for balance between capital and labour relations.
In addition to the hyper-mobility of capital and the specific characteristics of the contemporary productive market, another relevant factor for the alleged crisis of the union movements is the growing individuality present in a “post-moralist society”.
According to Gilles Lipovetsky, current individualism does not stem from greater selfishness of contemporary individuals, but rather from a greater social acceptance of the individualistic character of their preferences: “the novelty is precisely this: thinking only about themselves is no longer regarded as something immoral” (Lipovetsky 2005, p. 107).
While in the eyes of the moral ideal individuals do not enjoy rights, because they are only in charge of performing duties, the post-moralist culture overvalues the legitimacy of subjective rights and undermines the spirit of sacrifice, the ideal of giving precedence to others. The new individualist era atrophied in consciences the high regard that the altruistic ideal used to enjoy, redeemed self-centrism and legitimised the right to live only for oneself (Lipovetsky 2005, p. 107).
Often, the charitable-supportive spirit (minimalist and intermittent) becomes present only when there is some kind of identification between the individual, who gives himself, and the person or group receiving charity. Richard Rorty argues that the solidarity feeling finds its maximum intensity when those with whom we sympathise are recognised as “one of us” (Rorty 2007, pp. 314-315).
The expression “one of us” is adopted by Rorty to represent something more specific than merely belonging to the human race. According to him, people sympathise with each other not simply because they are all human beings, but in the presence of another element that subjectively gives them the feeling of closeness and belonging: nationality, age group, life history, family conditions or any other characteristics whereby a person identifies with another. And that is exactly why the union environment is conducive to restoring the spirit of solidarity, since several points of affinity are established among the unionised.
Michael Yates points out that the major union achievements in the 1930s in the United States were largely due to the basic principle that “an injury to one is an injury to all” (Yates 2009, p. 52). With the growing individualism present in society, this principle has lost strength and meaning.
Thus, trade unions must resume their spirit of a true “union movement”, based on group identity. The expression “trade union movement” is used by Julius Getman (2010) in his work “Restoring the power of unions: it takes a movement” to designate something more than simple union activity.
Trade union movements presuppose activity empowered by the activism of unionised workers, producing a force that transcends money, affiliates and economic power:
“Organized labor needs to rekindle the spirit of the activist member-powered movement that has guided its past successes. Organized labor today is a progressive interest group, but it is not a workers’ movement. A “movement” entails something more than money, members, and economic power – all those factors are significant thought. A movement requires activating and using the energies of workers. It means fostering solidarity across unions and occupations. It requires leaders who are willing to trust and who are committed to sharing power with the union’s rank and file. The spirit of movement also requires a concern for issues beyond the economic wellbeing of the members, such as environmental justice, racial equality, and the rights of immigrants” (Getman 2003, p. 1).
Thus, even if we recognise the existence of a series of factors that signal a crisis in union movements in these first decades of the 21st century, none of these elements is absolute or irreversible. It is in this sense that, in the 1990s, Fiorito, Jarley and Delaney stated: “Even if union decline is primarily due to external forces, there is little questioning that unions’ responses have been largely ineffective” (Fiorito, Jarley & Delaney 1995, p. 614).
A study conducted by Peter Fairbrother and Charlotte Yates (2003, p. 2) showed that in the early 2000s, many national trade unions and labour movements in several countries were already undergoing a process of reevaluating their strategies in response to the crisis of trade unionism.
This strategic reassessment ushered in a period of rapid change for many unions in order to rebuild union movements and restore their strength to employers and governments. The main actions adopted were mergers between trade unions, attempts to organise non-union workers and, in some cases, tests of new forms of partnership between unions and companies (Fiorito Jarley & Delaney 1995, p. 614).
Rescuing union movements is imperative, especially in economic and/or social crisis scenarios, such as the one we are facing due to the coronavirus pandemic.
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, 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.
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”, 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 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,” 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.
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.
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 The Constitution of Uruguay has followed this line since 1934, as Oscar Ermida Uriarte points out.
 Signed by King John, better known as John Landless, before ecclesiastical authorities and barons. On this topic, for all, check COMPARATO, 2013.
 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.
 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.
 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