Legal Reflections on the Observance of Human Rights in Employment Relations
The year 2019 began for Brazilian Labor Law with a defiant promise: the concrete implantation of Human Rights, an expression that can acquire multiple meanings, in the day-to-day of the employment relations. If this objective is achieved, it will raise the perennial capital-labor conflict to a qualitatively higher level, as will be discussed below.
Decree No. 9,571, dated November 21, 2018 (Decree No. 9571/2018), which came into force on the same date as it was published, created the “Enterprise and Human Rights” label, which may be awarded to companies that voluntarily join the program, and comply with its regulations which, it is worth mentioning, up to the present date still do not clearly indicate the direct advantages companies could obtain if they opt to comply with the guidelines that will be set by the public power, as it will be discussed below.
It initially established the guidelines that the Federal Government must observe regarding the protection of human rights in business activities, synthesized in twenty points, herein summarized: a) establishment of channels of denunciation for employees, suppliers and the community. The said channel of complaint must be confidential, and have a public flow of service, answering the complaints within the term established therein; b) guarantee of decent working conditions for all the workers, through a productive environment, with adequate remuneration and in conditions of freedom, equity and security, with a stimulus to the accomplishment of this objective by the companies; c) fight discrimination in employment relations, promoting and valuing diversity; (d) adoption and support for inclusion and non-discrimination measures, with the creation of incentive programs for hiring vulnerable groups; (e) encouragement on a permanent basis negotiation of working conditions and conflict resolution in order to avoid disputes; and f) sustaining the adoption of codes of conduct on human rights by companies with which it establishes business or works in partnership, encouraging the respect of human rights in commercial relations and state investments.
The Monitoring Committee of the National Guidelines on Business and Human Rights, which will be created under the recently established Ministry of Human Rights, will be responsible for producing an annual plan that will make the guidelines a reality. It should be noted that the Annual Plan has not yet been officially released, nor is there a deadline for its publication, when employers will be able to know the criteria for assessing compliance with the targets.
In any event, the Annual Plan will assign obligations to employers related to the defense and promotion of an internationally accepted labor relations standards. The main duties are: a) to use education, awareness and training mechanisms, such as courses, lectures and appraisals of learning, so that managers, employees, employees, distributors, business partners and third parties know the values , the rules and policies of the company and know their role for the success of the programs; b) to draw up a publicly accessible code of conduct, approved by the company’s management, which will contain its commitments and policies for the implementation of human rights in business; c) internally communicate that employees are prohibited from adopting practices that violate human rights, under penalty of internal sanctions; d) to guide employees, employees and persons linked to the business community to adopt a respectful, friendly and respectful approach to human rights; and (e) have a compliance structure to ensure the effective implementation of human rights commitments and policies.
The main innovation brought by Decree 9,571/2018 concerns the implementation and reinforcement of the Ethics Line. In fact, companies that wish to comply with the Annual Plan should, among other measures, institute mechanisms for denunciation, investigation and corrective measures, ensuring confidentiality and anonymity to the complainants made in good faith, so that these instruments are accessible to employees, suppliers, partners, and the surrounding community and they are transparent, impartial and able to address issues involving human rights threats, and have previously established and widely disseminated work flows and deadlines for response.
The successful adoption of the Ethics Line, in order to respond in an efficient and timely manner to employee complaints related to interpersonal conflicts that may arise in the workplace, will certainly assist the company in investigations initiated by both the Public Prosecutor’s Office (MPT) and the Ministry of Labor (whose extinction is still the subject of questioning before the Federal Supreme Court) regarding the practice of harassment in the work environment, and abuse of the directive power of the employer.
Compliance with the Annual Plan that will eventually be created by the Federal Government will be voluntary on the part of the target companies of the program. Such companies, if they agree to implement the program, and after being duly evaluated by the Ministry of Human Rights, will receive the Government Seal “Company and Human Rights” which, it is worth noting, is still being drafted by the Federal Government.
In order for such a project to be truly successful and widespread, as a genuine state policy, it will be fundamental that the new federal government establishes a clear set of benefits, not necessarily of financial nature, which could be granted to companies who opt to adhere to the program and follow its rules.
These are the first reflections about a proposal made by the Public Authorities, in order to reinforce the value of a safe, harassment-free and plural work environment in carrying out business activities. At a time when sadly recent events in the country invite everyone to reflect on the responsibility of companies towards their general public: consumers, suppliers, employees and the community, companies that accept the challenge of valuing the human factor will certainly be on the road to the sustainable development of its corporate activity.