One step forward and two steps back? Brazil’s journey to combat labour exploitation

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27 July 2017

Written by Leticia Ishibashi - FLEX

Brazil is often held up as an example of good practice in the fight against trafficking in persons. In 1995, Brazil became one of the first countries to officially acknowledge the occurrence of slave labour in its territory. Since then the country has developed a series of policies to protect trafficked persons, punish perpetrators and prevent further exploitation. But Brazil has struggled with implementing such regulations and recent political turmoil opened space for a series of proposals that may increase workers’ vulnerabilities.

Steps forward: new human trafficking law and reinstatement of dirty list

In the last two years Brazil has seen a mixture of progress and setbacks in its efforts to tackle human trafficking. In October 2016, the government passed law 13.344/16 criminalising all forms of human trafficking and adopting stricter penalties for perpetrators. This law extends trafficked persons the right to shelter and public benefits such as legal, social and health assistance. It also proposes preventative measures, such as educational campaigns and the creation of a database of offenders and trafficked persons, in partnership with national and international justice and security systems.

In March 2017 the government finally resumed publication of the lista suja –  ‘dirty list’ – after almost three years of disputes over its constitutionality. The ‘dirty list’ is a registry of individuals and businesses that have been found guilty of exploiting workers in conditions analogous to slavery. Those on the list cannot receive public financing, which also reduces their access to private funds since many financial institutions refuse to provide credit to employers included on the register. The 2017 list identified 68 businesses; quite a small number if compared to the 609 names listed in 2014, when it was last released.

Steps back: Weakening labour laws and definition of slavery

However, despite these improvements, implementation is underfunded and uneven throughout the country. In addition, legislative developments in the past few months have the potential to seriously undermine the protection of workers and create a culture of impunity for labour exploitation in Brazil.

Earlier this month the government approved a major Labour Code Reform that changed over 100 articles in order to ‘modernise’ labour relations in Brazil. Among the many changes, two in particular may increase workers’ vulnerability to abuse and exploitation. The first refers to an expansion in subcontracting to all sectors. Previously, employers could only subcontract support services, such as cleaning, catering and security. From now on they will be able to subcontract all core staff, such as factory workers, nurses and teachers, similarly to practices in the UK. This change is relevant because sub-contracted staff in Brazil earn 25% less than those directly employed; tend to work longer weekly hours and under more precarious health and safety conditions. As FLEX has highlighted, subcontracting often blurs the chain of accountability with workers becoming unaware of who is responsible for safeguarding their rights and whom to approach in case of violations.

The second issue refers to collective bargaining that takes precedent over the law. Following this reform, negotiations over salary, working hours and conditions would be decided between employers and workers, and could be enforced even if conditions leave workers worse off than what is legally guaranteed. In practice, it legalises payments inferior to the National Minimum Wage and allows employers to impose lower salaries and working standards. This change is especially concerning for sectors with low levels of unionisation since workers have less power to impact negotiations with employers.

In addition to this new law, two other pieces of legislation present major challenges to workers’ rights in Brazil. The first one wishes to revise legislation to limit ‘conditions analogous to slavery’ to involuntary work performed under threat and/or coercion of violence under restriction of movement. This change would remove ‘degrading work conditions’ and ‘excessive hours’ from the definition, meaning that those working in poor conditions would no longer access protections they are currently entitled to. This bill may also increase impunity and affect the progress Brazil has achieved in the last decades, as observed by the United Nations.

Finally, the second bill aims to modify employment regulations for rural workers. If passed, this bill would allow employers to pay rural workers with alternative forms of compensation, such as food, accommodation, commodities or land, instead of a salary. Jobs tied to accommodation are known to be high risk for labour exploitation since this increases workers’ dependence on their employment and makes it harder to leave in situations of abuse. In addition, workers would no longer be entitled to mandatory weekly days off and it would become legal for them to work 18 consecutive days. The absence of salary and time off present a violation of workers’ rights as set out in international treaties, and increases the potential for exploitation in a sector already marked by labour abuses.

Despite its status as a world reference in combatting human trafficking, current trends demonstrate that Brazil is facing a series of setbacks in workers’ protections. FLEX is concerned that further labour market flexibility coupled with under-resourced labour inspection will leave workers more vulnerable to exploitation. As FLEX have shown, small problems at work can lead to more severe exploitation and that can be intensified by labour market practices and structures that limit protections and facilitate impunity. The Brazilian government should strengthen its commitment to better protect workers and prevent labour exploitation instead of weakening regulations and thereby increasing vulnerability.