Federal Supreme Court of Brazil
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A preliminary injunction issued by Justice Rosa Weber of the Federal Supreme Court of Brazil (STF) suspends Administrative Regulation n. 1,129/2017 of the Labor Ministry, which modifies rules of inspection in the fight against slave labor and creates a new definition of forced labor, exhaustive work days and conditions analogous to slave labor, in order to, among other purposes, grant unemployment insurance.
The injunction was deferred in A Claim of Non-compliance with a Fundamental Precept (ADPF) 489, filed by the Rede Sustentabilidade (Sustainable Network) political party. A similar action (ADPF 491) filed by the National Confederation of Liberal Professions (CNPL), also under the rapporteurship of Justice Rosa Weber, is still pending before the STF.
In her decision in the action filed by the Rede party, the Justice considers the ADPF to be fitting, noting that the conceptual definition in the ministerial regulation "affects the actions and public policies of the Brazilian State, in regard to the fight against slave labor, in three dimensions: repressive (by impacting inspections carried out by the Labor Ministry), pedagogic-preventive (by disciplining the inclusion of names in the Register of Employers who have submitted workers to conditions analogous to that of slavery) and reparative (granting unemployment insurance to the rescued worker).
In this sense, the rapporteur asserts that such "extremely restrictive" conceptual definitions are not in line with what is required by the Brazilian legal system, international treaties concluded by Brazil and the case-law on the matter.
As the evolution of international law on the subject reveals, the Justice affirms in her decision that "modern slavery is more subtle and the restriction of freedom can result from various economic constraints and not necessarily physical ones."
"The violation of the right to decent work, which has an impact on the victim's ability to make choices according to his or her own free will, also means 'reducing someone's condition to that of a slave,'" the rapporteur said in her decision.
"Obviously, it is not any violation of labor rights that constitutes slave labor," said the Justice. She added, however, that if astonishing violations are reached and if workers are subjected to forced labor, exhausting working days or degrading conditions, depriving them of their freedom and dignity", even in the absence of direct coercion against freedom of coming and going, the hypothesis of subjecting workers to treatment similar to that of slaves is configured, according to Article 149 of the Criminal Code, with the wording definet by Act n. 10803/2003", she says.
In the Justice's assessment, the ministerial regulation empties the concept of an exhaustive day of work and forced labor; introduces, without legal basis, "geographic isolation" as a necessary element to the configuration of the hypothesis of restriction of the use of means of transportation by the worker; and places the presence of armed security as a requirement for the characterization of coercive retention of the worker in the workplace due to debt.
All this change of concept, according to the rapporteur, mitigates the scope of policies of repression, prevention and reparation to the victims of work in conditions analogous to slavery and contradicts 20 years of legal and administrative legacy carried out by Brazil in the fight against slavery, with internationally recognized instruments and technical mechanisms.
"These mechanisms and instruments were configured precisely in the 'dirty list', in the form of labor inspection and in the confrontation of impunity by the Special Mobile Surveillance Groups, through investigation, prosecution and punishment of those responsible for crimes, according to the International Labor Organization".
The rapporteur recalls that even these mechanisms have not yet been sufficient to curb the practice of modern slave labor and human trafficking in some regions of the country, leading Brazil to lose a case before the Inter-American Court of Human Rights in the "Fazenda Brasil Verde" case.
In order to grant the preliminary injunction, the Rapporteur considered the requirements of the legal plausibility of the request (fumus boni juris) and the danger of delay in the decision (periculum in mora), given the risk "of compromising the results achieved during the years of public policy development to combat the odious practice of subjecting workers to the condition analogous to slavery," should the regulation take effect.
According to the Justice, Administrative Regulation n. 1,129/2017 of the Ministry of Labor "has as a practical effect the extension of the time span during in which slave labor still remains open in Brazil, bringing continuous damage to the dignity of the people".
Thus Justice Rosa Weber accepted the injunction, to be approved by the Plenary, "with the precarious nature proper to preliminary judgments and without damage to a more thorough examination when judging the merits" to suspend the effects of the ministerial regulation.
The Justice then requested information from the Minister of Labor, and legal opinions from the Attorney General's Office and the Prosecutor General's Office.
Read the entire decision of Justice Rosa Weber in ADPF 489.
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