July 11, 2016updated 08 Nov 2017 11:01am
Brazil's seafarer clashes signal an urgent need for stronger workers' rights
Brazilian seafarers who voted to take industrial action against their employer Transpetro were faced with violent removal from the company's vessels, despite acting fully within their rights. Why was the situation allowed to escalate, and how could the oil and gas subsidiary have better handled this conflict?
By Eva Grey
On the 4th of May, seafarers employed by Brazil's largest oil and gas transportation company Transpetro voted overwhelmingly in favour of industrial action.
The strike was initiated by Brazilian seafarers' unions and demanded that petroleum company Petrobras, of which Transpetro is a subsidiary, introduce the staple 1×1 system widely deployed across all other private companies in the Brazilian offshore industry.
The 1×1 system grants seafarers equal shore time to sea time, a schedule that the unions said helps prevent accidents caused by fatigue. They branded Petrobras' refusal to deploy the system across its company as "discriminatory practices that potentially undermine the national flag identity of its offshore and cabotage fleet."
"The fact that all other private companies operating in the Brazilian offshore and cabotage sectors, apart from Petrobras subsidiaries, offer it not only creates unfair competition but increases risk," said Severino Almeida, president of CONTTMAF and the SINDMAR maritime officers' union.
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Delaying industrial action
However, the strike first planned for 14 May was delayed after Transpetro filed for an injunction from the Superior Labor Tribunal, asking for the industrial action to be declared illegal.
What's more, on the eve of the rescheduled industrial action, Transpetro sent out a manual that demanded ship masters to adopt "contingency measures", including disembarking legally striking seafarers, forbidding trade union representatives from visiting their members, prohibiting seafarers from contacting their union and suggesting masters detain strikers in the ship's engine room casing.
This heavy-handed and violent response to what had been deemed a legal strike was widely condemned by workers' rights unions and global branches of the International Transport Workers' Federation (ITF).
Were Brazilian seafarers within their rights?
Under the 1988 Federal Constitution of Brazil, workers are guaranteed the right to strike, according to lawyer Raphael Vianna and Professor Patrick Chaumette, director of the Maritime and Oceanic Law Centre.
Vianna and Chaumette work for the Human Sea program, a five-year project addressing issues of contemporary maritime law.
"To prevent the strike, Transpetro said the unions have not complied with the legal and statutory provisions for the strike," Vianna says. "It argues that there are differences between the wishes of the category and the union's conduct to the company."
In addition, Transpetro holds that its activity is characterised as essential under the law, on the basis that a "stop [to] all of the company's activities will result [in] shortage [of] natural gas and fuels in all regions of the country in the short term."
The conflict escalated on the day of the strike, when some ship masters followed Transpetro's manual and attempted to break the action by force.
"Transpetro sent out a manual that demanded ship masters to adopt "contingency measures"."
This led to widespread confusion, minor injuries and cases of physical violence reported by the unions. ITF insisted it has seen video evidence of some of the incidents.
A letter co-signed by ITF, the International Trade Union Confederation (ITUC) and CONTTMAF, calling on the director general of the International Labour Organisation (ILO) for urgent intervention, described how the events unfolded: "Rather than engaging with the unions in a constructive manner, the company is actively seeking to break the strike."
"Among other things, the company has ordered masters to disembark striking seafarers and deny union leaders access to their vessels. Alarmingly, company representatives have also been informing crewmembers that military personal may be deployed to forcibly disembark striking seafarers," the letter reads.
"Not only has the company instructed their masters and managers to illegally attack, punish and detain workers exercising their right to strike, but they are so blatant that they even did it in writing," said CONTTMAF's Almeida in a statement.
Despite Transpetro's efforts to intimidate striking seafarers, the court declared the industrial action to be fully legal and the protests continued on all company vessels, impacting ship speeds and cargo handling.
On its part, the oil and gas company released a statement saying: "Transpetro has always been open to dialogue. Worker's rights are respected and operational safety is our commitment.
There was never any interruption in our vessels and operations are normal."
On 17 May, CONTTMAF agreed to suspend the strike after a judge convened both parties to a conciliation of the conflict.
How could have the conflict been better handled?
"It is clear that the conflict is due to insufficient social dialogue, that negotiations could be opened, through mediation or arbitration," Chaumette says.
However, although the Federal Constitution stipulates that in the "failure of collective negotiation, the parties may choose arbitrators", this conflict resolution mechanism is not often used to address issues between the workforce and an employer. The usual answer is often litigation, Chaumette says.
"The political and economic context of Brazil contributes to the disruption of negotiations, given that Transpetro is part of Petrobras divestment plans."
"The court declared the industrial action to be fully legal and the protests continued on all company vessels."
Petrobras is selling stakes in Transpetro as part of the company's divestment plan for 2016. The move is hoped to raise cash, instead of relying on financial aid from the Brazilian government.
The company has also been rocked by a corruption investigation, which saw a number of searches and detentions over illicit payouts, bribes and illegal contracts and has involved Brazil's political and economic elite.
The company declared a loss of $9.6bn loss in 2015. As The Guardian reported, "once the crown jewel of Brazil's government, Petrobras's image quickly lost its luster amid mismanagement and corruption".
Despite looking promising, the conciliation hearing on 17 May hasn't changed much, Vianna says, since Transpetro does not accept the workers' requests for more time ashore.
"Arbitration or mediation probably would work better. It is much faster than state justice and sometimes more efficient."
Sign of a more deep-rooted problem
Although the conflict at hand has been dealt with particularly badly, it might be emblematic of a wider legislative problem in Brazil.
In the joint letter from the trade unions, ITF stated its belief that Transpetro's action may not only have breached national law, but "seriously violated basic, fundamental worker's rights as enshrined in the ILO's principles of freedom of association."
However, Brazil has not ratified ILO Convention 87 on Freedom of Association and Protection of the Right to Organise.
Ratification of the ILO Convention would force Brazil to adapt legislation to its principles. At present, "there are still workers who try to organise a union in the workplace and are fired," Vianna says.
According to the ILO, when examining the application of international labour standards, the Committee on Freedom of Association makes two kinds of comments: observations and direct requests. The Committee has issued observations regarding Brazil's situation for several years.
Within the current dispute, "a complaint of Brazilian unions at the ILO may lead to an investigation, then to observations of the Committee during 2017, but these observations have no binding effect."
"The political and economic context of Brazil contributes to the disruption of negotiations."
A court ruling recognised Transpetro's handling of the situation as wrong, and Minister of the Superior Labour Court Katia Arruda stepped in to mediate the conflict.
On 20 May, the unions declared victory in the court battle to protect their rights, and a new set of improved working conditions is currently being negotiated between Transpetro and its employees.
"We are happy that an apparently acceptable agreement is being reached that gives the seafarers what they deserve," the ITF said in a statement.
When faced with similar situations, "it is desirable that a company respects the principle of freedom union, union rights under national law, the right of collective labor disputes and the right to collective negotiations," Vianna says.
"This does not prevent the company to develop and restructure if necessary, but in the context of social dialogue."
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